[2013) 4 S.C.R. 239

CHAIRMAN, RUSHIKULYA GRAMYA BANK v.

BISAWAMBER PATRO & OTHERS

(Civil Appeal No. 2760 of 2013)

APRIL 2, 2013

[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]

Service Law - Promotion - On the basis of seniority-cummerit - Employer laying down a bench mark, besides the criteria fixed by promotion rules - Propriety of - Held: The C employer has discretion to fix minimum merit having in mind requirements of the post.

The question for consideration in the instant appeals was whether it was open to the management of the 0 appellant-Bank to lay down a benchmark, besides the criteria fixed by the rules for grant of promotion on seniority-cum-merit basis.

Allowing the appeals, the Court

HELD: The minimum necessary merit for promotion, is a matter that is decided by the management, having in mind the requirements of the post to which promotions

are to be made. The employer has the discretion to fix different minimum merit, for different categories of posts, F subject to the relevant rules. [Para 14] [246-G-H]

' Rajendra Kumar Srivastava and Ors. v. Samyut Kshetriya Gramin Bank and Others (2010) 1 SCC 335: 2009

(15) SCR 936 - relied on.

State of Kera/a N.M. Thomas (1976) 2 SCC 310: 1976

(1) SCR 906; Bhagwandas Tiwari v. Dewas Shajapur Kshetriya Gramin Bank (2006) 12 SCC 57 4: 2006 (8) Suppl.

A SCR 760; B. V. Sivaiah v. K. Addanki Babu (1998) 6 SCC

720: 1998 (3) SCR 782 - referred to.

Case Law Reference:

1976 (1) SCR 906 referred to Para 10 8 2006 (8) Suppl. SCR 760 referred to Para 10

1998 (3) SCR 782 referred to Para 10

2009 (15) SCR 936 relied on Para 11

C CIVIL APPELLATE JURISDICTION : Civil Appeal No.

2760 of 2013.

From the Judgment & Order daed 12.02.2008 of the High Court of Orissa at Cuttack in Writ Petition No. 13076 of 2004.

WITH

C.A. Nos. 2761, 2762, 2763, 2764, 2765, 2766, 2767 of 2013.

Dr. Lakshme Narsimha, S. Udaya Kumar Sagar, Bina E Madhavan, Karan Kanwal (for Lawyer's Knit & Co.) for the

Appellant.

C.K. Sasi, Abhisth Kumar, P.P. Singh for the Respondents.

The Judgment of the Court was delivered by

AFTAB ALAM, J. 1. Leave granted in all the special leave petitions.

2. All the appeals are at the instance of a Regional Rural G Bank, namely, Rushikulya Gramya Bank, and the matter relates

to promotion from one scale to another. Out of the eight appeals, six relate to promotion from Junior Management Scale-I to Middle Management Scale-II and in the remaining two appeals (arising from SLP (Civil) No.17974 of 2008 and SLP(civil) No.18898 of 2008), the matter relates to promotion H

from Clerk to Junior Management Scale-I.

3. The short question that arises in these appeals is whether it is open to the management of the Bank to lay down a benchmark, besides the criteria fixed by the rules for grant

of promotion on seniority-cum-merit basis. 8

4. The appellant - bank issued a circular No.024/2004-05, dated June 23, 2004 notifying the vacancies inter alia in the seventeen posts of Middle Management Scale-II and eight posts of Junior Management Scale-I. The circular stated that the process of promotion shall be conducted as per the C promotion rules of the Government of India. For promotion to the post of Middle Management Scale-II, the zone of consideration was four times the number of vacancies and for promotion to the post of Junior Management Scale - I, all eligible candidates were permitted to take the exam. -0

5. The rules governing promotion from Junior Management Scale-I to Middle Management Scale-II, in so far as relevant for the present, are as under:-

*2 (a) to (c) xxxxxxxx E

(d) Whether promotion to be made on seniority basis or merit:

Promotion shall be made on the basis of seniority- F cum-merit.

(e) Eligibility:

(f) Mode of Selection:

xxxxxxx

The Selection of the candidates shall be made G by the committee on the basis of written test, interview and assessment of Performance Appraisal Reports for the preceding H

five years as an officer in Sealed/Field Supervisor.

(g) Composition of Committee: xxxxxxxxx

(h) Reckoning of the minimum xxxxxxxxx eligibility:

(i) Number of candidates to be considered for promotion: xxxxxxxxx

G) Selection process for promotion: The selection shall be on the basis of performance in the written test, interview and performance Appraisal Report for preceding five years as per the division of marks given below.

(A) Written Test: 60 marks

(8) Interview: 20 marks

(C) Performance Appraisal 20 marks Reports:

TOTAL marks: 100 marks

(A) Written test (60 marks)

; The candidates shall be required to appear for

writth test comprising of two parts viz. Part (A) covering Banking Law and pJactice of Banking and Part (8) G covering Credit Policy, Credit Management including Priority Sector, Economics and Management.

:60 marks allotted written test shall be further divided as under:

Part "A" Part "B"

30 marks 30 marks A

A list of only those candidates who secure minimum 40% marks in 8 each part shall be prepared and such candidates shall be called

(8) Interview (20 marks):

(C) Performance appraisal

Reports (20) marks):

for interview.

There shall be no minimum qualifying marks for the' interview.

Performance Appraisal Reports for the preceding five years shall be considered for the purpose of awarding marks for promotion."

In case of promotion from Clerk to Junior Management Class-I scale the division of marks is as under:- ·

"(A) Written test 70 marks

(8) Interview marks 20 marks

(C) Performance Appraisal Reports 10 marks.

Total Marks . 100 marks. n

. 70 marks allotted to written test are further divided as under:

"English 35 marks

A Bank Law Practice 35 marks

Total Marks 70"

6. A candidate in order to qualify must secure a minimum B of 40 per cent marks each in English and banking law practice.

7. The appellant - bank, in addition to the requirement of 40% qualifying marks in the written test further fixed the qualifying mark of 60% for general candidates and 55% marks for SC/ST candidates on the aggregate marks comprising C written test, performance appraisal reports and interview.

8. The names of all candidates who got 60% or above in the aggregate were put in the list for promotion strictly as per their seniority. All candidates were promoted in order of o seniority, irrespective of anyone among them having got marks in excess of 60% in the aggregate.

9. The respondents in each of the appeals who were unsuccessful in getting promotions, challenged the select list E of the promoted candidates by filing writ petitions before the Orissa High Court. The High Court heard W.P.(civil) No.14359/ 2003 (giving rise to civil appeal, arising from SLP(Civil) No.19292/2008)) as the leading case. It allowed the Writ Petition holding that prescription of the benchmark of 60% marks in the aggregate was in violation of the promotion policy F and the rules governing the field. It, accordingly, allowed the Writ Petition and directed the appellant-bank to make fresh selection in accordance with the Rules. (The other writ petitions giving rise to the other appeals were disposed of following the

judgment passed in W.P.(Civil) No.14359/2004).

10. In taking the view that the prescription of the minimum qualifying marks in the aggregate was in contravention of promotion based on seniority-cum-merit, the High Court relied upon the decisions of this Court in State of Kera/a v. N.M.

Thomas1, Bhagwandas Tiwari v. Dewas Shajapur Kshetriya A Gramin Bank2 , and 8. V. Sivaiah v. K. Addanki Babu3. ·

11. In a more re9ent decision in Rajendra Kumar Srivastava and Others v. Samyut Kshetriya Gramin Bank and Others4 , this Court re-visited the issue of fixing a high B percentage as the minimum qualifying marks for promotion on seniority-cum-merit basis. It examined all the three decisions (besides others) relied upon by the High Court, namely, Bhagwandas Tiwari (supra), B. V. Sivaiah (supra) and N.M.

Thomas (supra).

12. In Rajendra Kumar Srivastava, the Court framed the following two questions for consideration:

"8. On the contentions urged, the following two questions arise for our consideration:

(i) Whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotions are to be made on the principle of seniority-cummerit?

(ii) Whether the first respondent Bank was justified in fixing a high percentage (78%) as the minimum qualifying marks (minimum merit) for promotion?

13. Answering both the questions in the affirmative, the Court on an analysis of the earlier decisions observed and held that:

"13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in

the feeder posts is first ascertained and thereafter, G

(1976) 2 sec 310.

2. c2006} 12 sec 574.

(1998) 6 sec 120.

(2010) 1 sec 335.

promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary. merit is recognised and accepted as complying with the principle of "seniority-cum-merit". What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by senioritycum-merit.

14. The next question is whether fixing of 78% as minimum qualifying marks (that is, as the minimum • necessary merit) is unreasonable and arbitrary. The Rules in this case provide that the mode of selection is by interview and assessment of performance reports for the preceding three years as officer Scale I. The seniority list of officers in Scale I was published on 4-12-1996.

Thereafter, the promotion process was held by earmarking 60 marks for assessment of performance reports (at the rate of 20 marks per year) and 40 marks were allotted for interview. The officers possessing the minimum qualifying marks of 78%, were then promoted on the basis of seniority. What should be the minimum necessary merit for promotion, is a matter that is decided by the management, having in mind the requirements of the post to which promotions are to be made. The employer has the discretion to fix different minimum merit, for different categories of posts, subject to the relevant rules. For example, for promotions at lower levels, it may fix lesser minimum qualifying marks and fix a comparatively higher

minimum qualifying marks for higher posts."

14. The decision of the High Court, thus, appears to be clearly contrary to the view taken by this Court in Rajendra Kumar Srivastava.

15. The decision of the High Court is, accordingly, set B aside. The writ petitions filed by the respondents before the Orissa High Court are dismissed. The select list prepared by the appellant-bank is affirmed. The appeals are allowed but with no order as to costs. c

K.K.T.

Appeals dismissed.