Supreme Court of India

Rupa Rani Rakshit & Ors vs Jharkhand Gramin Bank & Ors on 24 November, 2009

Equivalent citations: (2010) 1 ESC 104, (2010) 1 SCT 230, AIR 2010 SUPREME COURT 787, 2010 (1) SCC 345, 2009 AIR SCW 7283, 2010 LAB. I. C. 673, 2010 (2) AIR JHAR R 241, (2010) 2 ALL WC 2132, (2010) 1 MAD LJ 828, (2010) 1 JCR 88 (SC), (2010) 1 LAB LN 110, (2009) 123 FACLR 1041, 2009 (14) SCALE 139, (2009) 6 SERVLR 646, (2009) 14 SCALE 139

Author:
R.V.Raveendran

Bench:
K.S. Radhakrishnan
,
R. V. Raveendran

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1786 OF 2002

Rupa Rani Rakshit & Ors. ... Appellants

Vs.

Jharkhand Gramin Bank & Ors. ... Respondents

WITH

CA Nos.1787-1788 & 1789 of 2002

J U D G M E N T

R.V.RAVEENDRAN, J.

The appellants in these appeals are the employees of

the first respondent-Bank - Ranchi Kshetriya Gramin Bank

- now known as Jharkhand Gramin Bank. The appellants were

working as clerks-cum-cashiers or equivalent posts in

different branches of the first respondent-Bank. The

Regional Rural Banks (Appointment and Promotion of

Officers and other Employees) Rules, 1988 (for short `the

Rules') made by the Central Government in exercise of

powers conferred under the Provincial Rural Banks Act,
1976 governed the appointment and promotion of employees

of the Bank. Rule 5 provided that all vacancies shall be

filled in accordance with the provisions of the Second

Schedule to the Rules. Entry (5) of Second Schedule to

the Rules related to filling of posts of Field

Supervisors (subsequently merged with the post of

officers). Clause (a) thereof provided that 50% of the

posts shall be filled by promotion from amongst the

confirmed senior and junior clerks-cum-cashiers or

clerks-cum-typists or stenographers or steno-typists on

the basis of seniority-cum-merit (the remaining 50% to be

filled by direct recruitment which is not relevant for

these appeals). Clause (b) of Entry (5) prescribed the

educational qualifications and the eligibility (minimum

number of years of service in the feeder post) for

promotion. Clause (e) of Entry (5) prescribed the mode of

selection for promotion as "interviews and assessment of

performance reports for preceding three years period".

2. The first respondent Bank drew up a common seniority

list of all the eligible candidates (candidates

possessing the prescribed educational qualifications who

have put in the prescribed period of service) from the

feeder grades. Then the eligible candidates were

subjected to a comparative assessment based on marks

secured with reference to four parameters adopted by the
Board of Directors of the first respondent-Bank at its

58th Meeting, on the basis of the norms prescribed by the

National Bank for Agricultural and Rural Development (for

short `NABARD'). The four parameters and maximum marks

allocated to each of them were as under:

Sl.N Particulars Maximum
o. Marks

(i) Seniority 40

(one mark for each completed quarter of
service)

(ii) Educational Qualifications : 6

[for possessing graduate degree : 3 marks;
post-graduate degree : 2 marks and
Doctorate : 1 mark]

(iii Performance-appraisal : 24

) [for Very Good (A) - 8 marks; for Good (B)

- 6 marks; for Average (C) - 5 marks; and
for Poor (D) - 0 marks]

(iv) Interview : 30

[Minimum qualifying marks for interview :

10 marks]

TOTAL 100

A list of the candidates who secured the minimum

qualifying marks in the interview was prepared in the

order of merit with reference to the marks secured by

them on such assessment. Therefore, 31 candidates were

promoted from among the said list of clerical cadre to
the post of Field Supervisors in the order of merit, vide

notification dated 20.11.1990.

3. Feeling aggrieved, the third respondent herein filed

a writ petition before the High Court, contending that in

making the promotions, the Bank had ignored the principle

of seniority-cum-merit prescribed under the Rules and had

followed the principle of merit-cum-seniority. It was

also contended that contrary to the provisions of the

Rules which required that the mode of selection would be

only by interviews and assessment of performance reports

for preceding three years, the Bank had adopted the

method of assessment with reference to four parameters,

that is, years of service (seniority), educational

qualifications, in addition to performance appraisal and

interview.

4. By the time the said writ petition came up for

consideration, a Full Bench of the Patna High Court had

rendered its judgment in
Ranchi Kshetriya Gramin Bank vs.

D.P. Singh
[2000 (1) PLJR 251], holding that promotion of

persons with reference to merit, that is, promoting those

who secured highest marks in the list of eligible

candidates was contrary to the principle of seniority-

cum-merit. A learned Single Judge of the High Court,

therefore, allowed the writ petition field by third
respondent, by order dated 10.1.2001 and set aside the

promotions. He held that the promotions effected as per

the order dated 20.11.1990 without following the

principle of seniority-cum-merit, but on a comparative

assessment of merit which was based on marks for academic

qualifications, interview etc. were illegal.

Consequently, he directed as follows :

"While considering the cases all the eligible
candidates, it shall be open to the respondent
to fix marks for assessment of performance of
proceeding three years prior to the date such
promotion as were considered originally. This
clearly means the three proceeding years from
the date of original consideration which was
the subject matter of the writ application. It
shall be open to the Bank to allocate marks at
the minimum level for the interview/viva voce
test in addition to assessment of performance,
to determine the standard of candidate in the
interest of administration. Once it is done,
seniority shall have precedence over
everything else.

x x x x x

Till order of promotion is issued based on the
aforesaid directions the respondents No.3 to 7
and the intervener(s) will continue to hold
the post(s) as presently held by them and not
to be disturbed till the final order(s) are
passed in the matter of promotion. If,
however, any contesting respondent(s) or
intervener(s) or one or other fail to get
promotion they shall be deemed to be reverted
to the post as originally held by them before
issuance of the impugned order of promotion,
which has been set aside.

It is also made clear that contesting
respondents no.3 to 7 or the interveners if
allowed promotion on such consideration, they
will not get benefit in pursuance of earlier
notification dated 19th Nov. 1990, which has
been set aside by this Court."

The appeals filed by the appellants (candidates promoted

on 20.11.1990) against
the said judgment
were dismissed

by the Division Bench, holding by a short order that the

judgment of the learned Single Judge did not call for

interference. The said judgment is challenged in these

appeals by special leave.

5. The first contention urged by the appellants is that

the promotions made on dated 20.11.1990 were lawful and

valid. It was submitted that the Bank had effected

promotions by giving primacy to seniority as it allotted

maximum marks of 40 out of 100, for the period of service

(at the rate of one mark for every quarter of service).

It was pointed out that marks allotted to other

parameters were less - 30 marks for interview, 24 marks

for performance-appraisal in regard to three years

service and 6 marks for educational qualifications. It

was contended that when primacy was accorded to seniority

(period of service) in the assessment process, the

promotion should be treated as on the principle of

seniority-cum-merit.
6. The principle of seniority-cum-merit is well-

settled.
In
Rajendra Kumar Srivastava & Ors. v. Samyut

Kshetriya Gramin Bank & Ors. [C.A. No.6691
of 2001

decided on 17.11.2009], this Court observed as follows :

"8. It is also well settled that the principle
of seniority-cum-merit, for promotion, is
different from the principle of `seniority'
and principle of `merit-cum-seniority'. Where
promotion is on the basis of seniority alone,
merit will not play any part at all. But where
promotion is on the principle of seniority-
cum-merit, promotion is not automatic with
reference to seniority alone. Merit will also
play a significant role. The standard method
of seniority-cum-merit is to subject all the
eligible candidates in the feeder grade
(possessing the prescribed educational
qualification and period of service) to a
process of assessment of a specified minimum
necessary merit and then promote the
candidates who are found to possess the
minimum necessary merit strictly in the order
of seniority. The minimum merit necessary for
the post may be assessed either by subjecting
the candidates to a written examination or an
interview or by assessment of their work
performance during the previous years, or by a
combination of either two or all the three of
the aforesaid methods. There is no hard and
fast rule as to how the minimum merit is to be
ascertained. So long as the ultimate
promotions are based on seniority, any process
for ascertaining the minimum necessary merit,
as a basic requirement, will not militate
against the principle of seniority-cum-merit.

x x x x x

10. Thus it is clear that a process whereby
eligible candidates possessing the minimum
necessary merit in the feeder posts is first
ascertained and thereafter, 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 seniority-cum-merit."

(emphasis supplied)

7. In this case, the bank did not subject the eligible

candidates to any process of assessment to ascertain any

specified minimum merit, for the purpose of promoting the

candidates who possessed the minimum merit, on the basis

seniority. On the other hand, the Bank proceeded to

assess their inter-se-merit with reference to four

criteria (period of service, educational qualification,

performance during three years, and interview) by

allocating respectively maximum marks of 40, 6, 24 and 30

(out of a total 100 marks) and then proceeded to promote

those who had secured the highest marks in the order of

merit. Thus there were two violations of the relevant

rules: (i) promoting candidates on merit-cum-seniority

and not on seniority-cum-merit; and (ii) assessing inter-

se merit, inter alia with reference to marks allocated to
different educational qualifications. It cannot,

therefore, be said that the promotions made on 20.11.1990

were on the basis of seniority-cum-merit. Though the

period of service was also considered as one of the

factors for assessment of comparative merit, the

procedure adopted for promotion was merit-cum-seniority.

The High Court was, therefore, justified in interfering

with the promotions. The directions given by the High

Court for fresh process of promotion were in consonance

with the Rules and principles of seniority-cum-merit. The

appeals, therefore, have no merit.

8. The appellants submitted that they were promoted in

November 1990, that they had worked in the higher post of

Field Superiors for more than ten years and therefore,

even if there was some procedural irregularity, their

promotions ought not to have been interfered with, in the

year 2001. The submission is misleading. Though the

promotions of appellants were in November, 1990, it was

challenged before the High Court by the third respondent

by filing a writ petition, without any delay, that is, in

less than three months. The fact that the writ petition

was pending for a considerable time will not therefore

create any equities in favour of the appellants.
9. The appellants in C.A. No.1789 of 2002 have an

additional grievance. The three appellants in that appeal

were originally promoted on 20.11.1990. When the High

Court set aside the said promotions and directed a fresh

process of promotions by adopting the principle of

seniority-cum-merit, the Bank accordingly made fresh

promotions by order dated 24.4.2001 and these three

appellants were again promoted with effect from 9.4.2001.

But their seniority in the post of Field Supervisor was

reckoned from the date of their fresh promotion i.e.

9.4.2001 and the previous period of service as Field

Supervisor from 1990 to 2001 was ignored. They contend

that their service as Field Supervisors between 1990 and

2001 should also be counted for the purpose of their

seniority in the post of Field Supervisors, further

promotions and other benefits.

10. It is now well-settled that if an appointment or

promotion is made without considering the claims of all

the available eligible candidates and/or without

following the relevant rules, the service rendered in

pursuance of such illegal appointment or promotion cannot

be equated to service rendered in pursuance of an

appointment or promotion validly and lawfully made.

Whenever a person is promoted to a post without following
the rules prescribed for such promotion, he should be

treated as a person not regularly promoted to that post.

Consequently, where promotions are governed by Rules, in

computing the length of service, in the post to which an

employee is promoted, it is not permissible to include

the period of service rendered in pursuance of an illegal

promotion which is subsequently set aside. It,

therefore, follows that the period of service rendered by

the appellants from 1990 to 2001 cannot be counted for

the purpose of seniority in the cadre of Officers/Field

Superiors. Therefore, the appellants in C.A. No.1789/2002

are also not entitled to any relief.

11. Therefore, all the appeals and the applications for

impleadment are dismissed.

..............................J.
(R. V. Raveendran)

New Delhi; ..............................J.
November 24, 2009. (K.S. Radhakrishnan)