Calcutta High Court (Appellete Side)

Samsul Haque & Ors vs Nadia Gramin Bank & Ors on 16 May, 2008

Author:
Pranab Kumar Chattopadhyay

Bench:
Pranab Kumar Chattopadhyay

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE

Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee

F.M.A. 111 of 2008

Samsul Haque & Ors.
Versus
Nadia Gramin Bank & Ors.

For the Appellants: Mr. Kalyan Bandopadhyay
Mr. Debabrata Saha Roy
Mr. P. Bhattacharyya

For the Respondent bank : Mr. Sakti Nath Mukherjee
Mr. L. K. Gupta
Mr. Saptangshu Basu

For the Respondent Nos.5 to 16 : Mr. Swapan Kumar Dutta
Mr. Dipankar Das Gupta
Mr. Anirban Pramanick

Heard On: 24.04.2008 & 05.05.2008.

Judgment On: 16.05.2008.
PRANAB KUMAR CHATTOPADHYAY, J.

The scale-I officers (JMG) of the respondent bank filed a

writ petition before this Court challenging the promotion process

in respect of promotion to Scale-II. The aforesaid promotion is

governed by the Regional Rural Banks (Appointment and Promotion of

Officers and other Employees) Rules, 1998 framed under the

Regional Rural Banks Act, 1976
.

The real grievances of the writ petitioners is that the

selection for promotion has been virtually made on the basis of

merit-cum-seniority in violation of the specific rule prescribed

for the promotion on the basis of seniority-cum-merit. The

aforesaid contentions made on behalf of the writ petitioners did

not find favour with the learned Single Judge of the trial court

and the writ petition was dismissed by the said learned Single

Judge by the judgment and order under appeal.

The instant appeal has been preferred at the instance of the

said writ petitioners assailing the judgment and order under

appeal whereby and whereunder the writ petition filed by the

appellants herein was dismissed on merits.

For the purpose of adjudication of the issues raised in this

appeal, relevant provisions of the Regional Rural Banks

(Appointment and Promotion of Officers and other Employees) Rules,

1998 are required to be taken into consideration. The basis of

promotion to the post of Scale-II officer and the mode of

selection have been provided in Clause 2 of Third Schedule of the

aforesaid Promotion Rules of 1998. Clause 2(d) of the aforesaid

Third Schedule to the Promotion Rules, 1998 speaks of promotion to

the post of Scale-II officer on the basis of seniority-cum-merit.

The mode of selection, however, has been prescribed in Clause 2(f)

of the said Third Schedule. The composition of committee for

considering the Commission has been mentioned in Clause 2(g). The

selection process for promotion has been mentioned in Clause 2(j)

of Third Schedule.

For proper appreciation, aforesaid Clauses of Third Schedule

are set out hereunder:

" 2 (d) Whether promotion to be: Promotion shall be made on
made on seniority basis or the basis of
seniority-cum-seniority-cum-basis. merit.

(f) Mode of Selection: The selection of the candidate
shall be made by the committee on the basis
of written test, interview and assessment of Performance
Appraisal Reports for the preceding five years as an
officer in scale-I/Field Supervisor.

(g) Composition of Committee: The committee (for
consider-ing promotion) shall consistof the following persons,

namely -

i) The Chairman of the concerned Regional Rural
Bank-Chairman

ii) A director nominated by the Sponsor Bank-Member

iii) A director nominated by the National Bank-Member

Note : If none of the members of the Committee
belongs to Scheduled Castes/Scheduled Tribes, the
Board may nominate a person belonging to Schedules
Caste/Schedules Tribes as an additional member and
such person shall participate in the process of
selection by the concerned Committee.

(j) Selection Process for Promotion : The selection
shall be on the basis of Performance in the
written test, interview and
Performance Appraisal Reports
for preceding five years as
per the division of marks given
below :
A) Written Test : 60 marks
B) Interview : 20 marks

C) Performance Appraisal Reports : 20 marks

Total Marks : 100 marks

A) Written test: The candidates shall be require to
( 60 marks) appear for written test comprising
of two parts viz. Part (A)covering
Banking Law and Practice of
Banking and Part(B)covering Credit
Policy, Credit Management including
Priority Sector, Economics and
Management.

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

Part 'A'
30 marks
Part 'B'
30 marks
A list of only those candidates,
who secure a minimum of 40% marks
in each part shall be prepared and
such candidates shall be called for
interview.

B) Interview (20 marks): There shall be no minimum
qualify-ing marks for the interview.

C) Performance appraisal: Performance Appraisal
Reports for Reports (20 marks)the preceding five years shall be
considered for the purpose of
awarding marks for promotion."

Thirteen vacancies for Scale-II officers were notified by the

bank and in terms of Clause 2(i) of the Third Schedule, 52

candidates were identified to fall in the zone of consideration.

Out of the aforesaid 52 candidates, 26 including the appellants

herein qualified in the written test. Thereafter, all the

aforesaid 26 candidates including the appellants herein who

qualified in the written test were asked to appear at the

interview. In the said interview following factors were taken into

consideration in respect of each one of the candidates:

i) Marks secured in the written test

ii) Marks secured in the performance appraisal

iii) Marks secured in the interview

The management of the bank published the result of the

aforesaid 26 candidates who have qualified in the written test

after taking into account the marks of the written test of the

respective candidates once again along with the marks obtained in

viva-voce test and performance appraisal. Unfortunately, although

the appellant No. 1 is senior to all the private respondents,
except the private respondent No. 4 and the appellant Nos. 2 and 3

are senior to private respondent Nos. 8 to 16, they have been

declared as failed. According to the appellants, there is no scope

to declare any candidate passed or failed since no Benchmark was

prescribed in the Promotion Rules of 1998 for interview and

performance appraisal. The learned Counsel of the appellants

further submits that the management of the bank by superseding the

appellants herein have given promotion to the private respondents

without following the principle of seniority-cum-merit. It has

been specifically urged on behalf of the appellants herein that

the comparative assessment of merits of the candidates is not at

all permissible while selection for promotion is made following

the policy of seniority-cum-merit.

Mr. Saktinath Mukherjee, learned Senior Counsel representing

the respondent bank submits that the authorities of the bank are

under the obligation and duty bound to follow the rules in its

totality and any particular rule has to be construed in the

context of the entire rule. The learned Senior Counsel of the

respondent bank, however, admits that there may be an apparent

inconsistency between Clause 2(d) on the one hand and Clauses 2(f)

and (j) on the other hand. Undisputedly, Clause 2(d) provides

seniority-cum-merit formula and Clauses 2(f) and (j) provide for

assessment of merits of the candidates. The learned Senior Counsel
of the respondent bank further submits that the rule of

construction in case of an apparent inconsistency is that a head-

on collision of the different Rules should be avoided and an

endeavour should be made for harmonious construction of the

statutory rules in order to resolve the inconsistency in respect

of the statutory rules.

It has also been argued on behalf of the respondent bank that

there is no challenge to the procedure prescribed in the Rules. We

are, however, not very much impressed by the aforesaid argument as

the appellants/writ petitioners have specifically challenged the

selection procedure on the ground that the same is contrary to

Clause 2(d) of the Third Schedule which provides for selection on

the basis of seniority-cum-merit.

The principal question to be decided in this appeal is,

whether the respondent bank while following the prescribed

procedure for selecting candidates for promotion to the post of

Scale-II officer really followed the principle of seniority-cum-

merit as specifically provided in the promotion rules.

The learned Senior Counsel representing the appellants

submits that the Regional Rural Banks (Appointment and Promotion

of Officers and other Employees) Rules, 1998 made it clear that
the promotion to the posts of Scale-II officers should be made on

the basis of seniority-cum-merit but the selection process for

such promotion as provided by the said Rules of 1998 is not in

consonance with the aforesaid policy. The aforesaid inconsistency

has also been admitted by the learned Senior Counsel representing

the respondent bank.

Therefore, it is to be decided whether the bank should follow

the selection process for promotion as provided in the Rules of

1998 even though such selection is in violation and/or

inconsistent with the promotion policy based on seniority-cum-

merit.

The learned Single Judge following the earlier judgment

delivered by another Hon'ble Single Judge of this Court in W.P.

No. 8066 (W) of 1999 (Pradip Kumar Sarkar vs. Murshidabad Gramin

Bank and Ors.) held as hereunder:

"16. Before going to the next point, it is relevant to
take note that the 1998 Rules, in effect, postulates
that promotion to be given thereunder is actually based
on merit-cum-seniority and not seniority-cum-merit. This
view has found support in a judgment delivered by
another Hon'ble Judge of this Court in W.P. 8066(W) of
1999 (Pradip Kumar Sarkar and Ors. Vs. Murshidabad
Gramin Bank and Ors. by judgment delivered on 2.4.01).
In the said judgment, it has been held that although
under Rule 2(d) it has been stipulated that promotion is
to be given on the basis of seniority-cum-merit, but in
effect, it is merit-cum-seniority. The learned Single
Judge has also held that Clause 2(d) has to be read as
merit-cum-seniority within the definition of the said
phraseology. The relevant paragraphs of the said
judgment are to be found at Pages 6 and 9 to 11 thereof
and, they are accordingly reproduced hereunder as
follows:

Page-6 (top)
' With regard to the second ground Mr. Sanyal
has submitted that the relevant Standing Order
being Standing Order No. 642 E dated July 29,
1998, if read as a whole, clearly postulates
that the promotion shall be made on merit cum
seniority basis and not as seniority cum merit
as wrongly stipulated in 2(b) thereof.
According to Mr. Sanyal, Clause 2 of the third
schedule of the said Standing Order, if read
as a whole, would logically suggest such
meaning.

Mr. Sanyal in support of his contention
has cited two Supreme Court decisions reported
in 98 Vol. III Supreme Court Cases, Page 694
and AIR 1986, Supreme Court, Page 1043.'

Page 9-11
' Rule 2 of the third schedule of the Standing
Order is relevant for consideration in the
instant case. Sub-Clause (b) denotes the
promotion would be made on seniority cum
merit. The eligibility clauses being clause

(e), (b) and (i) give the criterion to bring
the candidates within the zone of
consideration.

Clause (f) prescribes the mode of
selection i.e. by holding written test,
interview and performance assessment. Clause

(g) deals with the composition of the
selection committee.

Clause (j) stipulates that the selection
shall be on the basis of performance in the
written tests, interview and performance
appraisal require for proceeding five years.
Sub-Clause A stipulates that a candidate to
become eligible to be called on in interview
must obtain 40% marks in both the groups
whereas sub-clause B denotes that there is no
minimum qualifying marks in the interview.
Whereas sub-clause C the last five years
records are to be considered for awarding
marks. There are total 100 marks in the
selection process out of which written tests
denotes 60 marks, interview and performance
records 20 marks each.

It is significant that there is no
minimum marks prescribed for being considered
for ultimate selection. If I have to accept
the contention of Mr. Mukherjee that the
promotion in the instant case is in accordance
with seniority cum merit then I have to find
out from the standing order the minimum marks
to make the senior most eligible for the
promotional post. In absence of such marking
it is very difficult to ask the authority to
act on the basis of the Standing Order by
giving promotion to the senior cadre on the
basis of minimum eligible qualification when
there is no minimum eligible qualification
fixed for the said post. The rule of
interpretation does not permit me to add or
delete any word. I have to give harmonious
construction of the said Standing Order as far
as practicable. Hence, reading clause 2 of the
third schedule of the said Standing Order and
taking a sum total of the relevant sub-clauses
and the meaning thereof it appears to me that
although the said promotion has been
stipulated to be made on the basis of
seniority cum merit it is in effect merit cum
seniority. I, therefore, find substance in Mr.
Sanyal's argument. I hold that clause 2(d) has
to be read as merit cum seniority in
accordance with the definition of the said
phrase as held by the Apex Court in various
judgments including the judgment reported in
AIR 1998 Supreme Court, page 2565. Hence I do
not find any irregularity in the selection
process."

[SIC but underlining by this Court]

The learned Single Judge following the said judgment in the

case of Pradip Kumar Sarkar & Ors. (Supra) came to an erroneous
finding that the 1998 Rules although provides that promotion is to

be given on the basis of seniority-cum-merit, in effect, it is on

the basis of merit-cum-seniority. The aforesaid finding of the

learned Single Judge is virtually contrary to the prescribed rules

which are applicable in the matter of granting promotion. The

learned Single Judge, in our opinion, was clearly misled by the

provisions mentioned in the Rules with regard to the mode of

selection. The prescribed procedures for mode of selection can

under no circumstances change the basis of promotion which has

been clearly mentioned in the said Rules i.e. seniority-cum-merit.

In the present case, undisputedly, the respondent bank selected

the candidates and granted promotion actually on the basis of

merit-cum-seniority and not seniority-cum-merit which has been

erroneously approved by the learned Single Judge in the judgment

under appeal.

We respectfully disagree with the aforesaid findings of the

learned Single Judge. Clause 2(d) of the Third Schedule of the

1998 Rules specifically provides that promotion should be made on

the basis of seniority-cum-merit and there is no ambiguity in this

regard. When the 1998 Rules clearly provide that promotion should

be made on the basis of seniority-cum-merit, the learned Single

Judge had no scope to take a contrary view since it is well-

settled that the Court cannot rewrite the Rules.

The learned Single Judge also erroneously held as hereunder:

"12. Merely because at Rule 2(d), the authors of the
Rule have stated that promotion shall be on the basis of
seniority-cum-merit, the same, by itself, cannot mean
that under the 1998 Rules, seniority has to be given
weightage in supersession of merit."

In our opinion, the learned Single Judge did not lay down the

correct law. In the event, promotion is to be given on the basis

of seniority-cum-merit then seniority has to be given weightage in

supersession of merit.

The Hon'ble Supreme Court in the case of
B. V. Sivaiah and

Others vs. K. Addanki Babu and Others
reported in (1998) 6 SCC 720

specifically held:

"18. We thus arrive at the conclusion
that the criterion of 'seniority-cum-

merit' in the matter of promotion
postulates that given the minimum

necessary merit requisite for efficiency
of administration, the senior, even
though less meritorious, shall have
priority and a comparative 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
marks which would entitle a person to be
promoted on the basis of seniority-cum-
merit."

Referring to the earlier decision of the Supreme Court,

Arijit Pasayat, J. in the case of
Bhagwandas Tiwari & Ors. vs.

Dewas Shajapur Kshetriya Gramin Bank & Ors.
reported in AIR 2007

SC 994 explained the principles of seniority-cum-merit and merit-

cum-seniority as hereunder:

"10. The principle of 'merit-cum-
seniority' lays greater emphasis on merit
and ability and seniority plays a less
significant role. Seniority is to be
given weight only when merit and ability
are approximately equal. In the context
of Rule 5(2) of the Indian Administrative
Service/Indian Police Service
(Appointment by Promotion) Regulations,
1955 which prescribed that "selection for
inclusion in such list shall be based on
(AIR 1974 SC merit and suitability in all respects

87) with due regard to seniority" Mathew, J.

in
Union of India v. Mohan Lal Capoor and
Ors.
, 1973 (2) SCC 836, has said:-

' For inclusion in the list, merit
and suitability in all respects
should be the governing
consideration and that seniority
should play a secondary role. It is
only when merit and suitability are
roughly equal that seniority will be
a determining factor, or if it is
not fairly possible to make an
assessment inter se of the merit and
suitability of two eligible
candidates and come to a firm
conclusion, seniority would tilt the
scale.'

(AIR 1974 SC 87) Similarly, Beg, J. (as the learned Chief
Para 22 Justice then was) has said (SCC p. 851,
Para 22) :

'22. Thus, we think that the correct
view, in conformity with the plain
meaning of words used in the relevant
rules, is that the 'entrance' or
'inclusion' test, for a place on the
select list, is competitive and
comparative applied to all eligible
candidates and not minimal like pass
marks at an examination. The Selection
Committee has an unrestricted choice of
the best available talent, from amongst
eligible candidates, determined by
reference a reasonable criteria applied
in assessing the facts revealed by
service records of all eligible
candidates so that merit and not here
seniority is the governing factor.'

11. On the other hand, as between the
principles of seniority and merit, the
criterion of 'seniority-cum-merit' lays
greater emphasis on seniority. In State
(AIR 1968 SC of Mysore and Anr. V. Syed Mahmood and
1113)
Ors., 1968 (3) SCR 363, while considering
Rule 4(3)(b) of the Mysore State Civil
Services General Recruitment Rules, 1957
which required promotion to be made by
selection on the basis of seniority-cum-

merit, this Court has observed that the
rule required promotion to be made by
selection on the basis of 'seniority
subject to the fitness of candidate to
discharge the duties of post from among
persons eligible for promotion.' It was
pointed out that where promotion is based
on seniority-cum-merit, the officer
cannot claim promotion as a matter of
right by virtue of his seniority alone
and if he is found unfit to discharge the
duties of the higher post, he may be
passed over and an officer junior to him
may be promoted.

12.
In
State of Kerala and Anr. V. N. M.

(AIR 1976 SC 490) Thomas and Ors., 1976 (2) SCC 310, A.N.
Para 38 Ray, C.J. has thus explained the
criterion of 'seniority-cum-merit' (SCC
p. 335, Para 38):-

'With regard to promotion the normal
principles are either merit-cum-

seniority or seniority-cum-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."

As observed earlier, the bank in the present case, granted

promotion in violation of the promotion policy based on seniority-

cum-merit. Going through the records we find that the authorities

of the respondent bank while selecting the candidates for

promotion considered the marks secured by the individual

candidates in the interview and performance appraisal reports

apart from the written test and thus, in effect, followed the

procedure for granting promotion on the basis of merit-cum-

seniority as specifically recorded by the learned Single Judge in

the judgment under appeal. The marks secured in the interview as

well as the performance appraisal report and in the written test

cannot have any effect in the matter of granting promotion on the

basis of seniority-cum-merit. However, in order to ensure minimum

standard of merit, provision for securing minimum 40% marks in
each part in the written test cannot be declared unreasonable

although ultimate selection cannot be based on the basis of marks

secured by the candidates seeking promotion to the higher post.

The Hon'ble Supreme Court in the case of
Hargovind Yadav vs.

Rewa Sidhi Gramin Bank and Ors.
reported in (2006) 6 SCC 145

considered the aforesaid issue as hereunder:

"22. Interviews can be held and assessment of
performance can be made by the Bank in
connection with promotions. But that can be
only to assess the minimum necessary merit.
But where the procedure adopted does not
provide the minimum standard for promotion,
but only the minimum standard for interview
and does the selection with reference to
comparative marks, it is contrary to the
rule of 'seniority-cum-merit'. This aspect
of the matter has been completely lost sight
of by the learned Single Judge and the
Division Bench of the High Court in this
round of litigation. As noticed above, they
have proceeded on the basis that the
appellant having failed to secure the
minimum marks prescribed for interview, was
rightly denied promotion, by ignoring the
principle
laid down by
this Court in Sivaiah
in regard to seniority-cum-merit. At all
events, as the promotion policy adopted by
the Bank was held to be illegal in the
earlier round of litigation (WP No. 4485 of
1993 dated 13-10-1988), the Bank could not
have adopted the same policy to again reject
the appellant for promotion.

We may also
note that the law
laid down in
Sivaiah was
reiterated in
Sher Singh v. Surinder Kumar

wherein this Court had occasion to consider
a similar question relating to the promotion
for the post of clerk to Field Supervisor in
the case of another Gramin Bank. This Court
held that as the criterion for making
promotion from the post of clerk to that of
Field Supervisor was seniority-cum-merit but
the Bank did not follow the criterion of
seniority-cum-merit but made promotions on
the basis of merit-cum-seniority, the
promotion was vitiated and therefore
invalid."

The learned Single Judge approved the stand of the respondent

bank in the matter of granting promotion even after recording that

the selection for such promotion was made on the basis of merit-

cum-seniority and not seniority-cum-merit as clearly mentioned in

the Rules and thus, virtually the learned Single Judge made an

attempt to re-legislate the statute and/or rewrite the Rules as

argued by Mr. K. Bandyopadhyay, learned Senior Counsel

representing the appellants. Mr. Bandyopadhyay also referred to

and relied on a decision of the Supreme Court in the case of
Jinia

Keotin and Others vs. Kumar Sitaram Manjhi and others
reported in

(2003) 1 SCC 730 (Paragraph 5).

There is no doubt that the Court has no power either to re-

legislate the statute and/or rewrite the Rules. Therefore, the

learned Single Judge even after coming to the specific finding

that the rule for granting promotion on the basis of seniority-

cum-merit has not been followed approved the action of the
respondent bank with regard to selection of the candidates for

granting promotion to the higher post.

The learned Senior Counsel of the appellants raised another

issue relating to the conducting of the written test by a private

agency without constituting a Committee in compliance with the

Rules. In our opinion, the Rules should be followed at every stage

and there is no scope to avoid the mandate of the Rules.

It has also been submitted on behalf of the respondent bank

that the 1998 Rules contained several provisions materially

different than those in the 1988 Rules. According to the learned

Senior Counsel of the respondent bank, all the decided and

reported cases on promotion in Regional Rural Banks/Gramin Banks

including
B. V. Sivaiah & Ors.
(Supra) and
Hargovind Yadav
(Supra)

have considered the Recruitment Rules of 1988 and not the

Recruitment Rules of 1998. Since the Recruitment Rules of 1988 as

well as the Recruitment Rules of 1998 specifically provide that

the selection for promotion should be made strictly on the basis

of seniority-cum-merit, the principles of law
laid down in
the

aforesaid decisions cited on behalf of the appellants are very

much applicable in the facts of the present case.

The learned Senior Counsel representing the

respondent bank submits that there is an apparent inconsistency

between Clause 2(d) of the Third Schedule on one hand and Clauses

2(f) & (j) on the other hand. Thus, the said learned Senior

Counsel of the respondent bank virtually admits that the mode of

selection for promotion mentioned in the Rules is inconsistent

with the principle for granting promotion in terms of the

aforesaid Rules on the basis of seniority-cum-merit. The learned

Senior Counsel of the respondent bank further submits that the

Court should make an endeavour for harmonious construction of the

aforesaid Rules in order to resolve the apparent inconsistency.

It is true that if the harmonious construction is possible and

permissible then the same should be accepted otherwise the

principle prescribed in the Rules for promotion based on

seniority-cum-merit cannot be given a go-bye even for the purpose

of following the selection process as provided in the said Rules

of 1998. The selection process prescribed in the rules should be

followed in order to achieve the policy of promotion based on

seniority-cum-merit as specifically mentioned in the said Rules of

1998. The policy for promotion on the basis of seniority-cum-merit

cannot be diluted at any stage and if necessary suitable amendment

of the selection process should be made. Undisputedly, the

selection process for promotion should be prescribed in such a
manner so that the policy for promotion based on seniority-cum-

merit can be followed and implemented.

The provisions mentioned in the Recruitment Rules of

1998 with regard to the mode of selection and the selection

process for promotion cannot have any overriding effect on the

principle prescribed for promotion on the basis of seniority-cum-

merit as specifically mentioned in Clause 2(d) of the Third

Schedule of the Recruitment rules, since the procedure cannot

prevail upon principle or supersede the principle under any

circumstances. The principle prescribed in the Rules for promotion

on the basis of seniority-cum-merit should be strictly followed

and implemented at every stage and in doing so, if any

inconsistency is detected with any other rule prescribing the

procedure relating to mode of selection and selection process for

promotion then such inconsistency should be avoided in such a

manner so that the principle prescribed for promotion on the basis

of seniority-cum-merit is not at all defeated.

With regard to mode of selection and selection process for

promotion, minimum standard prescribed for written test upon

imposing condition on the candidates for securing a minimum of 40%

marks in each part of the written test should be followed and in

doing so there would be no inconsistency with the principle
prescribed for promotion on the basis of seniority-cum-merit in

Clause 2(d) of the Third Schedule. Regarding interview and

performance appraisal reports, no minimum qualifying marks have

been prescribed. Therefore, the concerned authority should

consider the performance of the candidate concerned at the

interview and performance appraisal reports for the preceding five

years in order to assess the suitability of the candidates to the

promotional posts. This Court cannot rewrite the Rules but in

order to give a harmonious construction of the Rules, the marks

awarded in the interview and the performance appraisal reports

should be considered only for assessing the suitability of the

candidates and not to adjudge comparative merits of the candidates

upon giving a go-bye to the principle of promotion on the basis of

seniority-cum-merit.

The learned Counsel representing the private

respondents also adopted the arguments advanced on behalf of the

respondent bank.

In the instant case, the appellants have

successfully passed the written test conducted under the Rules

upon securing more than 40% marks. Therefore, for the purpose of

granting promotion to the post of Scale-II officers, seniority

should be the governing factor. None of the appellants has been
found unfit to discharge the duties of the higher post on the

basis of the interview or performance appraisal reports.

Therefore, the claims of the appellants for

promotion to the posts of Scale-II officers should be reconsidered

by the competent authority of the respondent bank strictly on the

basis of seniority-cum-merit under the said 1998 Rules.

For the reasons discussed hereinbefore and

specifically for non-complying with the provisions mentioned in

Clause 2(d) of the Third Schedule of 1998 Rules, in the matter of

granting promotion to the post of Scale-II officer strictly on the

basis of 'seniority-cum-merit', the impugned order of promotion

issued earlier by the Chairman, Nadia Gramin Bank on 25th August,

2005 cannot be sustained in the eye of law and the same is,

therefore, quashed.

The authorities of the respondent bank are directed

to undertake selection process de novo for promotion to the post

of Scale-II officers from Scale-I officers following the principle

of seniority-cum-merit as clearly mentioned in the 1998 Rules and

explained hereinbefore.

Since a considerable time has already been elapsed,

the authorities of the respondent bank are directed to complete

the selection process de novo in the manner directed hereinabove

at an early date but positively within a period of eight weeks

from date.

With the aforesaid observations and directions, we

allow the appeal and set aside the judgment and order passed by

the learned Single Judge.

In the facts and circumstances of the present case, there

will be no order as to costs.

Let urgent Xerox certified copy of this judgment, if applied
for, be given to the learned Advocates of the parties on
completion of usual undertaking.

[PRANAB KUMAR CHATTOPADHYAY, J.]

TAPAN MUKHERJEE, J.

I agree

[TAPAN MUKHERJEE, J.]
LATER :

After pronouncement of the judgment, the learned

Counsel of the respondent-bank as well as the private respondents

prays for stay of the operation of
the said judgment
and order. We

find no reason to grant such stay.

Accordingly, the prayer for stay is refused.

[PRANAB KUMAR CHATTOPADHYAY, J.]

[TAPAN MUKHERJEE, J.]