1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: ORDER S.B. Civil Writ Petition No.5142/2009 Kuldeep Parihar Vs. The Jaipur Thar Gramine Bank & Anr. And S.B. Civil Writ Petition No.5293/2009 R.S. Mandlawat Vs. The Jaipur Thar Gramine Bank & Anr. DATE OF ORDER :: 9th Dec., 2009 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. PS. Bhati, for the petitioners. <><><> BY THE COURT: Heard learned counsel for the petitioners. These two writ petitions involving common questions of law and fact are decided by this common judgment. The facts of the writ petition no.5142/2009 will serve the purpose for deciding both the writ petitions. The petitioners have challenged the circular dated 5th July, 2006 (Annex.2) to the extent of prescribing the 2 conditions of requiring the candidates to obtain 50% marks as minimum qualifying marks in the interview and 50% marks as minimum marks for performance appraisal report and further direction against the respondents to re-conduct the exercise of promotion to the post of Officer Scale – II in accordance with the Rules of 1998 (Annex.1). The petitioners further prayed for quashing of complete selection process subsequent to the result of written examination, which was taken in pursuance of the selection process initiated by issuing programme for promotion from Officers Scale-I to Scale-II by communication dated 14th Nov., 2007 (Annex.5). According to the petitioners the Regional Rural Bank established by the Central Government under the Regional Rural Bank Act, 1976 in exercise of the powers conferred by Section 29 of the Act of 1976 read with Section 17 thereof and in supersession of the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998, the Central Government after consultation with the National Bank and Standard Bank published the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998. 3 These rules were duly published in the Gazette of India and copy of which has been placed on record as Annex.1. The 3rd Schedule of the Rules of 1998 comprehensively provides for the procedure for appointment and promotion of the employees and officers in the various categories of posts mentioned in the 1st Schedule of the aforesaid rules. Both the petitioners claim that they became eligible for next promotional post i.e., to the post of Officer Scale-II after completion of 8 years of service. Such promotion has to take place 100% by promotion and is governed by the Rules of 1998 and according to the petitioners these rules are statutory as well as mandatory rules. As per Rules of 1998 promotion has to be on the basis of criteria of seniority-cum-merit while the eligibility for the post is holding of Scale-I post for 8 years as an Officer on regular basis in the Regional Rural Bank subject to relaxation of 2 years if provided by the Rules. The selection of the candidates by the committee had to be made on the basis of written test, interview and assessment of performance appraisal reports for preceding 5 years as an officer in the Scale-I Field Supervisor. The selection can be on the basis of marks obtained in the written test, interview and 4 performance appraisal reports for preceding 5 years as per the division of marks stipulated in the Rules, which are 60 marks for the written test, 20 marks for the interview and 20 marks for performance appraisal reports. The candidate appearing in written test in two parts of 30 marks each and the candidate obtaining 40% marks in both the parts shall be called for the interview. The interview and the appraisal shall each constitute 20 marks. According to the petitioners in the Rules of 1998 referred above, there is no minimum marks prescribed for the interview so as to get the selection for higher post on the basis of promotion, but the respondents issued fresh Rules on 5th July, 2006 wherein keeping all the above norms intact, the respondents added a column of minimum bench marks along with column of distribution of marks making it mandatory to have minimum qualifying marks of 50% in the interview and 50% in the performance appraisal reports. According to the petitioners such amendment or inclusion is not specified in the covering note of the rules and does not specify as to from where powers came to the respondents so as to add the provisions of bench marks for the interview and performance appraisal reports. The petitioners have placed 5 on record the copy of the rules issued on 5th July, 2006 as Anex.2. The petitioners submitted that they have sent representation to the respondents against these rules. The petitioners then stated in the writ petition itself that the process for promotion to fill up the vacancies of Officers Scale-II was initiated by the notification dated 5th April, 2007. This exercise was for 49 posts of Officer Scale- II. The copy of the notification dated 5th April, 2007 is Annex.3. Both the petitioners came in zone of consideration for promotion and, therefore, they were invited to take written examination, which were taken on 16.12.2007. The petitioners passed the written examination held on 16.12.2007. Then result was declared on 2.1.2008 (Annex.6). Then petitioners were called for interview and they faced the interview in pursuance of the invitation for interview letter dated 11th April, 2009. The petitioners then appeared in the interview and in final result, they were declared unsuccessful. Then petitioners preferred these writ petitions in the month of May, 2009 to challenge the process of selection initiated under the Rules of 1998 as came into force in the year 2006 (Annex.2) by initiation of process for giving promotion to the post of Officer Scale-II 6 by issuing notification dated 5th April, 2007 and after taking part in the process of selection and thereafter after failing to succeed in that selection process in the year 2009. Learned counsel for the petitioners submitted that in exercise of legislative powers the Rules of 1998 were framed by the Central Government which is clear from Gazette Notification Annex.1. In these rules at page no.29 complete selection process has been prescribed for promotions. This provides 60 marks for written test, 20 for interview and 20 marks for performance appraisal reports then it also provides bifurcation for marks for written test assigning 30 marks for part-A paper and 30 marks for part- B paper. Then it provides that a list of only those candidates who secured minimum of 40 in each marks shall be prepared and such candidate shall be called for interview. The sub-clause (b) very specifically provides that there shall be no minimum qualifying marks for the interview. Contrary to the above statutory rules, a circular was issued on 5th July, 2006 by the respondent- Jaipur Thar Gramine Bank by which only minimum bench mark have been fixed for interview and performance appraisal reports and that too to the extent of 50% for interview and 50% for performance 7 appraisal reports. Learned counsel for the petitioners submitted that the respondent no.1 or its Board of Directors were not competent to frame the rules as projected by them in circular dated 5th July, 2006 as the rules could have been framed by the Central Government under Section 29 read with Section 17 of the Act of 1976. It is also submitted that the Rules of 1998 cannot be amended nor they stand amended by circular dated 5th July, 2006. It is also submitted that prescribing of minimum marks to the extent of 50% as minimum marks for interview gives arbitrary power to the selectors. It is submitted that for promotion on the basis of “seniority-cum-merit” lays greater emphasis on seniority whereas criteria of “merit-cum-seniority” lays greater emphasis on merit and ability and seniority plays a less significant role becoming relevant only when merit is approximately equal as held by the Hon'ble Supreme Court in the case of Harigovind Yadav Vs. Rewa Sidhi Gramin Bank & ors reported in (2006) 6 SCC 145. In said Harigovind Yadav's case (supra) the Hon'ble Supreme Court considered earlier judgment of the Hon'ble Supreme Court delivered in the case of Sant Ram Sharma Vs. State of Rajasthan & Ors reported in 1968 (1) SCR 111 and other cases and held 8 that interviews can be held and assessment of performance can be made by the bank in accordance with law, but that can be only to assess the minimum necessary merit. On the basis of the said judgment, learned counsel for the petitioners tried to challenge the process of selection. I considered the submissions of learned counsel for the petitioners. It appears that petitioners has suppressed the important material facts that circular dated 5th July, 2006 was issued in pursuance of the direction issued by the Hon'ble Supreme Court which is clear from the note appended in the circular. The note appended in the end of the circular is as under: - “Note : The minimum qualifying marks in Performance Appraisal Report and Interview for promotion to the post of officer scale-I, II & III and from Messenger to Clerk-cum-cashier/Clerk- cum-Typist/Stenographer as mentioned in this circular have been adopted or instructions from NABARD/Sponsor Bank in compliance to Supreme Court decision and approved by the Board of Directors of the Bank.” From this note it is clear that minimum qualifying marks in Performance Appraisal Report and Interview for promotion to the post of officer scale-I, II & III and from 9 Messenger to Clerk-cum-cashier/Clerk-cum-Typist/ Stenographer as mentioned in this circular dated 5th July, 2006 have been adopted on instruction from NABARD/Sponsor Bank in compliance to Supreme Court decision and approved by the Board of Directors of the Bank. The petitioners did not disclose this material and relevant fact in their writ petitions and also have not disputed that the minimum qualifying marks have been prescribed to give effect to the direction of the Hon'ble Supreme Court. Therefore, the prescribing of the minimum marks for promotion to the post of Scale-II cannot be challenged by the petitioners as that has been done to comply with the direction of the Hon'ble Supreme Court. The writ petition of the petitioners also are liable to be dismissed on the ground that the petitioners accepted the rules as circulated in the year 2006 appeared in the written test under those rules, faced the interview and after failing in that process of selection want to challenge the condition of prescribing of minimum marks for interview and performance appraisal reports, which is impermissible in view of the judgment of the Division Bench of this Court delivered in the case of Baroda Rajasthan Gramin Bank Vs. 10 Megh Raj Soni & Ors (DBSAW No.180/2009, decided on 26th May, 2009) after considering the judgments of the Hon'ble Supreme Court. Hence, both the writ petitions of the petitioners are hereby dismissed having no merit. [PRAKASH TATIA], J. cpgoyal/-