Supreme Court of India

Harigovind Yadav vs Rewa Sidhi Gramin Bank & Ors on 9 May, 2006

Equivalent citations: AIR 2006 SUPREME COURT 3596, 2006 AIR SCW 2822, 2006 (5) SCALE 524, 2006 (6) SCC 145, (2007) 1 SERVLJ 18, (2007) 1 JAB LJ 147, (2006) 43 ALLINDCAS 133 (SC), 2006 (7) SRJ 385, (2006) 4 ALLMR 38 (SC), 2006 (4) ALL MR 38 NOC, (2006) 2 CURLR 647, (2006) 3 LAB LN 111, (2006) 6 SCJ 381, (2006) 4 SUPREME 673, (2006) 5 SCALE 524, MANU/SC/2738/2006, (2006) 110 FACLR 428

Bench:
B N Srikrishna
,
R V Raveendran

CASE NO.:
Appeal (civil) 1153 of 2003

PETITIONER:
Harigovind Yadav

RESPONDENT:
Rewa Sidhi Gramin Bank & Ors.

DATE OF JUDGMENT: 09/05/2006

BENCH:
B N Srikrishna & R V Raveendran

JUDGMENT:

J U D G M E N T

RAVEENDRAN, J.

The appellant and the third Respondent are working as
clerk-cum-cashiers with the first respondent Bank (Rewa Sidhi
Gramin Bank). The appellant is at serial No.9 and third
respondent is at serial No.10 in the seniority list of senior clerks
cum cashiers published on 31.7.1988. There is no dispute that
the third respondent is junior to appellant in the cadre of clerk-
cum-cashier.

2. The promotions of employees of the first Respondent
Bank (for short 'the Bank') are governed by the Regional Rural
Banks (Appointment & Promotion of Officers and other
employees) Rules, 1988 (for short 'rules') made by the Central
Government in exercise of the power conferred by Section 29
read with
section 17
of the Regional Rural Banks Act, 1976.
Rule 5 provides that all vacancies shall be filled by deputation,
promotion or by direct recruitment in accordance with the
provisions contained in the second Schedule. Rule 10 requires
the Board of Directors of each Regional Rural Bank to
constitute from time to time Staff Selection Committees in the
manner provided therein for the purpose of selecting candidates
for appointment by direct recruitment or promotion to the posts
referred to in the second Schedule. It also requires the Staff
Selection Committee to follow the procedure as determined by
the Board for selecting the candidates for appointment or
promotion in accordance with the guidelines issued by the
Central Government from time to time.

3. Entry 5 of the second Schedule to the Rules relates to
Field Supervisors. It provides the source of recruitment as 50%
by direct recruitment and 50% by promotion on the basis of
seniority-cum-merit (from amongst confirmed senior clerk-
cum-cashiers, junior clerk-cum-cashiers, or clerk-cum-typists,
stenographers and steno typists with the prescribed minimum
periods of service). For direct recruitment, the mode of
selection is 'written test and interview'. The method prescribed
for ascertaining the minimum necessary merit required for
promotion by seniority-cum-merit is 'interviews and
assessment of performance reports for the preceding 3 years'.

4. The promotions were made by the Bank in accordance
with the promotion policy contained in the circular dated
2.2.1989. The circular stated the object of the promotion policy
thus:

"The object of the policy which is based on the principle of
Seniority-cum-merit is to provide motivation and ensure
carrier movement for Bank Staff. Apart from seniority,
merit based on performance coupled with weightage for
placement/posting in comparatively inconvenient areas,
will be the determining factors for promotion."

Chapter 3 of the said promotion policy dealing with promotions
to the post of Field Supervisors is extracted below :

"FROM SENIOR CLERK/CASHIER OR JUNIOR
CLERK/CASHIER OR CLERK/TYPIST OR
STENO/TYPIST TO FIELD SUPERVISOR.

Promotion from Senior Clerk/Cashier or Junior
Clerk/Cashier or Clerk/Typist or Steno/Typist to Field
Supervisor subject to satisfaction of minimum period of
service shall be, at present on the basis of assessment of his
overall performance based on appraisal reports on him and
his potentiality to shoulder higher responsibilities assessed
in the interview duly supplemented by weightage for
seniority placement/posting as detailed herein below :

Percent weightage for various promotion criteria as
mentioned above will be as follow :

Total
Marks
Seniority
Posting at
Rural Centres
Posting at
difficult
Centres
Performance
Interview
5
3.1 Seniority :

Two marks for each completed year of service as Senior
Clerk/Cashier and one mark for each completed year of
service as Junior-Clerk/Cashier/Typist/Steno/Typist subject
to a maximum of 20 marks.

3.2 Posting at rural centers.

Two marks for each completed year of service in rural
center with a maximum of 10 marks.

3.3 Posting at difficult centers.

One mark for each completed year of posting at difficult
center (difficult centers to be identified by the Chairman
and approved by the Board) with a maximum of 5 marks.

3.4 Performance/Appraisal

Performance will be assessed through the appraisal reports
annually received from his superiors in such form as may
be specified by the Chairman from time to time. Marks will
be awarded at the rate of 8 marks each for annual appraisal
ratings for the appraisal of preceding 3 years period with
the maximum of 24 marks and 16 marks for overall
performance of the Staff (maximum 16 marks).

Performance, on the basis as stated above, will be assessed
by a Staff Selection Committee constituted by the Board
for this purpose from time to time.

3.5 Interview :

(a) The Staff Selection Committee constituted by the
Board for the purpose of promotion, will also work
as Interview Committee.

(b) The Maximum marks for interview will be 25. By
and large, the candidates who have been found
eligible will be interviewed in respect of (1)
Personality (2) Poise and Manner (3) Power of
expression (4) Emotional Stability (5) Job
Knowledge including knowledge of Banking (with
reference to the functions/role of Regional Rural
Banks) (6) General Knowledge (7) Initiative (8)
Leadership quality (9) Potential and suitability and
overall assessment.

3.6. Candidates who have secured less than 40% marks
in interview will not be considered for promotion and their
names will not be included in the final merit list.

3.7. The list of successful candidates in the order of total
marks obtained will be placed by the Staff Selection
Committee before the Board, duly recommended for
consideration for appointments or promotion."

5. On 3.7.1991 the appellant's juniors were promoted as
Field Supervisors. The appellant was not promoted. He
therefore filed W.P. No.4485/1993 in the High Court of
Madhya Pradesh, challenging the promotion of two of his
juniors (third respondent herein and one V.P. Singh) on the
ground that the Bank had failed to make promotions on the
basis of seniority cum merit, prescribed under the Rules, and
had made promotions on the basis of merit cum seniority
contrary to the rules. Appellant contended that the procedure
whereby only 20 marks were allocated to seniority and 80
marks were allocated for other factors for the purpose of
assessment, and promoting those who secured the highest
marks on the basis of such assessment of overall performance,
clearly demonstrated that the promotions were not on the basis
of seniority cum merit.

6. The Bank resisted the said petition by contending that the
promotions were made on the basis of seniority cum merit and
not on merit cum seniority, in accordance with the Promotion
Policy dated 2.2.1989. It contended that the promotion policy
took note of seniority also by earmarking 20 out of 100 marks
for seniority and therefore the procedure adopted by the bank
for promotions to the post of Field Supervisor should be
considered as seniority cum merit. It was not disputed that the
comparative merit of the candidates was assessed with
reference to performance appraisal, interview, posting at
rural/difficult centres and that the persons securing highest
marks in the order of merit were recommended for
consideration for promotion.

7. A learned Single Judge of the Madhya Pradesh High
Court allowed the Appellant's writ petition by order dated
13.10.1998 following the decision of this Court in
B.V. Sivaiah
& Ors. V. K. Addanki Babu
[1998 (6) SCC 720]. He held that
the promotions had been made not on the basis of seniority cum
merit, but on the basis of merit-cum-seniority. Consequently,
the promotion of third respondent herein and V.P. Singh were
quashed with a direction to the Bank to consider the case of
appellant for promotion to the post of Field Supervisor, along
with other eligible candidates. The said order of the learned
Single Judge was challenged by the third respondent and V. P.
Singh in a Letters Patent Appeal which was dismissed on
2.12.1998. It is stated that the special leave petition filed against
the decision in the Appeal was also dismissed.

8. As no action was taken in pursuance of
the said decision
,
the appellant filed a contempt petition on 31.1.1999. The said
petition was disposed of by the High Court, on 10.5.1999,
recording the assurance of the Bank that the case of the
appellant will be considered and appropriate orders will be
passed within one month. Thereafter the bank again passed an
order of promotion dated 14.6.1999 promoting the third
respondent to the post of Field Supervisor. Appellant was not
promoted.

9. The appellant, therefore, once again approached the
Madhya Pradesh High Court in W.P. No.2800/1999 challenging
his non-promotion, contending that the bank has not made
promotion on the basis of seniority cum merit. He contended
that the Bank had failed to follow the decision of this Court in
SIVAIAH and the decision in his own case. He contended that
even under the basis of merit-cum-seniority adopted by the
Bank, he was entitled to promotion on the total percentage of
marks secured by him and he had been deliberately failed in the
interview to deny him promotion. The appellant stated that he
had secured the following marks in the assessment made for
promotion :

Criteria
Total
marks
Marks secured
by appellant
Seniority
Posting at rural centres
Posting at difficult centres
Performance
Interview
TOTAL
10. The bank resisted the second petition also. It contended
that the Departmental Promotion Committee had considered the
case of the appellant and other eligible candidates in terms of
the promotion policy contained in its circular dated 2.2.1989 by
assessing appellant's performance and interviewing him. The
Bank contended that, as per the promotion policy, the
candidates who secure less than 40% of the 25 marks allocated
for interview will not be considered for promotion; that only
those who got 10 marks and above in the interview, were
eligible for promotion; and that appellant who had secured only
9 marks in interview was thus not eligible for promotion.

11. A learned Single Judge of the MP High Court dismissed
the appellant's writ petition (WP No. 2800/1999) by order
dated 26.4.2000. He held that in
Sivaiah
's case (supra), this
Court had accepted the fixation of minimum standard for
assessing merit and a candidate who fails to fulfil the said
minimum standard cannot be promoted. The learned Single
Judge held that the appellant was not promoted, as he failed to
secure the prescribed minimum for interview. The learned
Single Judge was of the view that the method evolved for
adjudging the minimum merit was in consonance with the
principle of seniority-cum-merit, and the appellant having failed
in interview for promotion, he was not entitled to any relief.

12. The appellant challenged the said order before the
Division Bench which rejected the LPA by judgment dated
23.8.2001 affirming the decision of the learned Single Judge. It
held that the criteria adopted by the employer by prescribing
minimum qualifying marks for interview for determining the
suitability of the candidate for promotion was just and
reasonable and the appellant having failed to secure the
minimum marks in the interview, was rightly not promoted.
Both the single Judge and the Division Bench purported to
follow the principle
laid down in
para 37 of the Judgment in

SIVAIAH
(supra). The said decision of the Division Bench of
the High Court is challenged in this appeal by special leave.

13. As both parties have relied on the decision in
Sivaiah

(supra), we may start by referring to the relevant observations
therein. The decision in SIVAIAH was a common judgment
which considered the meaning of the criterion 'seniority-cum-
merit' for promotion. The decision dealt with several distinct
batches of cases relating to different Regional Rural Banks,
which had different promotion policies, that is Rayalaseema
Grameena Bank, Pinakini Grameena Bank, Bastar Kshetriya
Gramin Bank, Rewa Sidhi Gramin Bank (respondent herein)
and Chhindwara-Seoni Kshetriya Gramin Bank.

The High Courts had taken the view that if "seniority-cum-
merit" criterion is adopted for the purpose of promotion, then
first the seniormost eligible employee has to be tested to find
out whether he possesses the minimum required merit for
holding the higher post and only if he is not found suitable or
fit, his immediate junior ma be tested for the purpose of
promotion. The said view was assailed before this Court by the
various regional rural banks as well as the promoted officers
whose promotions had been set aside by the impugned
judgments of the High Court.

This Court noted that in the matter of formulation of a policy
for promotion to a higher post, the two competing principles
which may be taken into account are inter-se seniority and
comparative merit of employees who are eligible for promotion.
This Court observed :

"In
Sant Ram Sharma vs. State of Rajasthan
(AIR 1967 SC
1910), this Court has pointed out that the principle of
seniority ensures absolute objectivity by requiring all
promotions to be made entirely on grounds of seniority and
that if a post falls vacant, it is filled by the person who had
served longest in the post immediately below. But the
seniority system is so objective that it fails to take any
account of personal merit. It is fair to every official except
the best ones. An official has nothing to win or lose
provided he does not actually become so inefficient that
disciplinary action has to be taken against him. The
criterion of merit, on the other hand, lays stress on
meritorious performance irrespective of seniority and even
a person, though junior but much more meritorious than his
seniors, is selected for promotion. The Court has expressed
the view that there should be a correct balance between
seniority and merit in a proper promotion policy. The
criteria of "seniority-cum-merit" and "merit-cum-seniority"

which take into account seniority as well as merit seek to
achieve such a balance."

This Court also noted that while the principle 'seniority-cum-
merit' lays greater emphasis on seniority, 'merit-cum-seniority'
laid greater emphasis on merit and ability and seniority plays a
less significant role, becoming relevant only when merit is
approximately equal. After referring to several decisions
bearing on the issue, this Court enunciated the following
general principle in regard to promotions by seniority cum
merit (at para 18) which is relied on by the Appelllant :

"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."

Thereafter, this Court took up the cases of each Bank
separately. While dealing with the case relating to Chhindwara-
Seoni Kshetriya Gramin Bank, this Court observed thus (in
para 37) which is relied on by the Respondents :

"During the course of hearing of the appeal, the learned
counsel for the respondent-Bank has placed before us the
relevant documents relating to the impugned selection and
promotion. On a perusal of the said documents, we find that
50 marks out of the total of 100 marks were prescribed as
the minimum qualifying marks for interview and only those
who had obtained the qualifying marks in interview were
selected for promotion on the basis of seniority. It was,
therefore, a case where a minimum standard was prescribed
for assessing the merit of the candidates and those who
fulfilled the said minimum standard were selected for
promotion on the basis of seniority. In the circumstances, it
cannot be said that the selection has not been made in
accordance with the principle of "seniority-cum-merit". We
are, therefore, unable to uphold the impugned judgment of
the High Court. The appeal has to be allowed and the
impugned judgment of the High Court dated 7.2.1997
passed by the learned Single Judge of the High Court has to
be set aside and the promotion of the appellant on the post
of Area/Senior Manager under order dated 8.4.1993 has to
be affirmed."

14. Before considering the effect of observations in para 37
of the decision in SIVAIAH, relating to Chindwara-Seoni
Kshetriya Gramin Bank, let us refer to what this Court held
with reference to other Banks :

(i) Rayalaseema Grameena Bank had adopted a system of
assessment where weightage to be given (total of 120
marks) was divided into seniority (34 marks),
qualification (10 marks), interview (20 marks) and
performance (56 marks). Only those officers who had
secured the higher number of marks were ultimately
promoted. On these facts, this Court held :

"It is not a case where minimum qualifying marks
are prescribed for assessment of performance and
merit and those who secure the prescribed minimum
qualifying marks are selected for promotion on the
basis of seniority. In the circumstances, it must be
held that the High Court has rightly come to the
conclusion that the mode of selection that was in
fact employed was contrary to the principle of
"seniority-cum-merit
"
laid down in
the Rules."

(ii) Pinakini Grameena Bank had adopted a system of
assessment where weightage to be given (total of 100
marks) was divided into seniority (55 marks), passing
CAIIB (5 marks) performance (25 marks) and interview
(15 marks). Only those who secured highest number of
marks were promoted. This Court held :

"The said circular did not prescribed minimum
qualifying marks for assessment of performance and
merit on the basis of which an officer would be
considered for being selected and, as pointed out by
the High Court, the selection was made of only
those officers who secured the highest number of
marks amongst the eligible officers. In the
circumstances, the High Court, in our view, has
rightly held that this method of selection was
contrary to the principle of "seniority-cum-merit"

and it virtually amounts to the application of the
principle of "merit-cum-seniority".

(iii) Bastar Kshetriya Gramin Bank made selections on the
basis of interview of all the eligible officers by the Staff
Selection Committee and a select list of five persons was
prepared and on that basis promotions were made. This
Court held :

"It is not disputed that the selection was made on
the basis of marks assigned on the basis of
interview by the Selection Committee and those
who secured the highest marks were selected. The
selection process adopted for the purpose of
promotion to the post of Area Managers/Senior
Managers was thus not in consonance with the
principle of "seniority-cum-merit" and the
promotions were not made in accordance with the
Rules."

15. Thereafter, this Court considered the case of the first
Respondent Bank itself (in paras 33 to 35). There also the bank
relied on the very same promotion policy contained in circular
dated 2.2.1989 (with which we are concerned) for promotion to
the post of Area/Senior Manager by seniority cum merit. The
promotion policy provided that the promotion from the post of
officer to Area/Senior Manager shall be on the basis of his
overall performance based on appraisal reports and his
potentiality shall be assessed in the interview, duly
supplemented by weightage for job responsibility, placement,
posting mobility etc. 100% weightage was divided into
seniority (15 marks), job responsibility (12 marks),
placement/posting mobility (8 marks), performance (40 marks)
and interview (25 marks). As in the case of promotion to the
post of Field Supervisors, the policy provided that the
candidates who secure less than 40% of the marks allocated for
interview, shall not be considered for promotion and the list of
successful candidates in the order of total marks obtained will
be placed by the Staff Selection Committee for consideration
for promotion. The challenge to the promotion of Area/Senior
Managers on the above basis was upheld by the learned Single
Judge and confirmed in Appeal b the Division Bench. This
Court dismissed the appeals on the following reasoning :

"For the same reasons, civil appeals arising out of Special
Leave Petition [C} Nos.19965-19966 of 1997 are also
liable to be dismissed inasmuch as according to the
promotion policy dated 2.2.1989, selection was made on
the basis of the total number of marks obtained by the
eligible candidates. The criterion of the promotion policy
cannot be regarded as being in consonance with the
principle of "seniority-cum-merit" as prescribed under the
Rules."

16. It is thus clear that this Court did not accept the
promotion policy contained in circular dated 2.2.1989 as being
in consonance with the principle of seniority-cum-merit. This
Court held that the policy which did not prescribe a minimum
standard for assessing merit and which promoted candidates on
the basis of comparative merit, with reference to total marks
obtained by the eligible candidates, followed the merit-cum-
seniority principle. The decision in SIVAIAH relating to
Area/Senior Managers of the first respondent bank was
followed by the High Court in the case of appellant, in its
judgment dated 13.10.1998 and it was held that the procedure
adopted by the first respondent bank for promotion of third
Respondent and V.P. Singh as per circular dated 2.2.1989 was
contrary to the Rules which required promotions by seniority-
cum-merit, and the bank was directed to redo the promotions by
considering the case of appellant and other eligible candidates
by adopting the criteria of seniority cum merit. That decision
attained finality as the appeal and SLP were rejected. It may be
stated that even prior to the decision in SIVAIAH relating to
Area/Senior Managers of the first respondent bank, the same
view had been expressed in the earlier judgment dated
9.10.1996 of the Division Bench of the Madhya Pradesh High
Court in LPA No.151/1996 and connected cases and civil
appeals arising out of SLP (c) Nos.17780-81/1997 filed against

the said judgment
dated 9.10.1996 had been dismissed.
Therefore we have several rounds of litigation which had been
fought up to this court where the High Court and this court have
repeatedly and clearly held that the procedure prescribed, in the
promotion policy circular dated 2.2.1989, is not in consonance
with the principle of seniority-cum-merit prescribed for
promotion under the Rules but amounted to following the
principle of merit cum seniority and therefore vitiated. What is
surprising is that, in spite of these decisions, the first respondent
bank again adopted the very same procedure contained in the
promotion policy of 2.2.1989 and again failed to promote the
appellant by assigning him marks of 16 (20), 10 (10), 3(5), 24
(40) and 9 (25) and held that he was not eligible for promotion
as he did not secure the minimum marks of 10 prescribed for
interview. But, admittedly, there was no overall minimum and
the procedure required assessment of comparative merit. This is
not therefore a case of the appellant failing to secure the
minimum necessary merit required for promotion but a case
where the appellant's entitlement to promotion was sought to
be assessed by adopting a procedure which allotted 20 marks
for seniority, 40 marks for performance, 15 marks for posting at
rural and difficult centres and 25 marks for interview. The bank
has persisted in adopting the merit-cum-seniority procedure in
spite of the decisions of this Court in several rounds of
litigation
referred to above
.
As the entire promotion procedure
adopted by the bank as per its policy dated 2.2.1989 has stood
rejected by the High Court and this court in
SIVAIAH
(supra)
as also in the earlier round of litigation of Appellant, the
promotion of third Respondent and non-promotion of appellant
by adopting the very same procedure is liable to be interfered
with.

17. 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 (W.P. No.
4485/1993 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 vs. Surinder Kumar
[1998 (9) SCC
652] 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.

18. We will now deal with para 37 in
SIVAIAH
(supra)
relied on by the Respondents. Para 37 related to Chhindwara-
Seoni Kshetriya Gramin Bank where the procedure adopted for
promotion was different from the criteria that was adopted by
the Rewa Sidhi Gramin Bank, first respondent herein. In the
case of Chhindwara Seoni Kshetriya Bank, the assessment of
minimum necessary merit was by interview. The candidate who
secured a minimum of 50 out of 100 marks in the interview,
was selected for promotion on the basis of seniority. It was thus
found to be a case where minimum standard was prescribed for
assessing the merit of the candidates and those who qualified by
securing the minimum marks (50%) were promoted strictly as
per seniority. Thus, it was in consonance with the principle of
seniority-cum-merit. Therefore, the observations in para 37 of
SIVAIAH are of no assistance to Respondents. As we have
already noticed, in this case, the procedure is not one of
ascertaining the minimum necessary merit and then promoting
the candidates with the minimum merit in accordance with
seniority, but assessing the comparative merit by drawing up a
merit list, the assessment being with reference to marks secured
for seniority, performance, postings at rural/difficult places and
interview. The fact that the appellant had failed to secure the
minimum marks in interview, is not relevant as the entire
procedure adopted by the bank (of which interview is a part) is
found to be vitiated and not in consonance with the principle of
seniority cum merit.

19. In this view of the matter, we do not propose to go into
the contention of the appellant that though he had secured very
high percentages (overall 62%), with the intention of
deliberately denying him promotion, he had been failed in
interview by giving him 9 marks as against the minimum of 10
for interview.

20. The learned counsel for the Bank placed reliance on the
decision of this Court in
K. Samantaray vs. National
Insurance Co. Ltd.
, [2004 (9) SCC 286), where this Court
following the earlier decision in
Syndicate Bank SC & ST
Employees Assn. Vs. Union of India
[1990 Supp.SCC 350],
reiterated that apart from the recognized methods of seniority-
cum-merit and merit-cum-seniority, there can also be a third
method, that is a hybrid mode of promotion. This Court
observed :

"While laying down the promotion policy or rule, it is
always open to the employer to specify the area and
parameter of weightage to be given in respect of merit and
seniority separately so long as policy is not colourable
exercise of power, nor has the effect of violating any
statutory scope of interference and other relatable matters."

But
in that case
promotions were not governed by any statutory
Rules, but by a promotion policy. The above observations made
with reference to such a policy, which wholly occupied the field
insofar as promotion is concerned, are not relevant where the
statutory Rules require promotion by seniority-cum-merit.

21. The next question that arises for consideration is the
relief to be granted. The appellant was first considered for
promotion during 1991 and was not promoted, by wrongly
adopting the principle of merit-cum-seniority. The said
procedure was found to be erroneous by the Single Judge,
Division Bench and by this court. The Bank was directed to
consider the case of Appellant for promotion on the basis of
seniority-cum-merit. Thereafter, in the contempt proceedings
initiated by the appellant, the Bank undertook to comply with
the order directing consideration of the appellant's case by the
procedure of seniority cum merit. But the Bank, again by
adopting the merit-cum-seniority method, failed to promote the
appellant and promoted third respondent.
The procedure
adopted by the Bank had been found to be faulty on three
occasions by this Court and the High Court, one of which was
in the case of Appellant himself. The appellant had been denied
promotion for more than 16 years by repeatedly adopting such
an erroneous procedure. In the circumstances, we do not think it
necessary to drive the appellant once again to face the process
of selection for promotion. This Court in
Comptroller and
Auditor General of India v. K.S. Jagannathan
[1986 (2)
SCC 679] observed thus :

"There is thus no doubt that the High Courts in India
exercising their jurisdiction under
Article 226
have the
power to issue a writ of mandamus or a writ in the nature of
mandamus or to pass orders and given necessary directions
where the government or a public authority has failed to
exercise or has wrongly exercised the discretion conferred
upon it by a statute or a rule or a policy decision of the
government or has exercised such discretion mala fide or
on irrelevant considerations or by ignoring the relevant
considerations and materials or in such a manner as to
frustrate the object of conferring such discretion or the
policy for implementing which such discretion has been
conferred. In all such cases and in any other fit and proper
case a High Court can, in the exercise of its jurisdiction
under
Article 226
, issue a writ of mandamus or a writ in the
nature of mandamus or pass orders and given directions to
compel the performance in a proper and lawful manner of
the discretion conferred upon the government or a public
authority, and in a proper case, in order to prevent injustice
resulting to the concerned parties, the court may itself pass
an order or give directions which the government or the
public authority should have passed or given had it
properly and lawfully exercised its discretion."

Having regard to the factual background of the case, and having
regard to the fact that even under the merit cum seniority basis
adopted by the bank the appellant had secured high marks and
he was denied promotion on the ground that he failed to secure
minimum marks in the interview, there is no need to refer the
matter for fresh consideration. With a view to do complete
justice, in exercise of our power under
Article 142
we hereby
direct the first respondent bank to promote the appellant as a
Field Supervisor, from the date the third defendant was
promoted as Field Supervisor and place him above the third
Respondent. However, he will be entitled to monetary benefits
flowing from such promotion only prospectively, though the
pay is to be refixed with reference to the retrospective date of
promotion.

22. This appeal is allowed accordingly.