Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 36033607 OF 2019
(Arising out of SLP(C) Nos.70107014/2009)
Shriram Tomar and another Etc. …Appellants
Versus
Praveen Kumar Jaggi and others …Respondents
WITH
CIVIL APPEAL NO. 3608 OF 2019
(Arising out of SLP(C) No.6075/2009)
Dev Narain Shukla and others ..Appellants
Versus
Praveen Kumar Jaggi and others ..Respondents
J U D G M E N T
M.R. SHAH, J.
Leave granted.
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.04.09
18:07:33 IST
Reason:
2. As common question of law and facts arise in this
group of appeals, and as such they arise out of the impugned
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common judgment and order passed by the High Court, all these
appeals are being decided and disposed of by this common
judgment and order.
2.1 All these appeals arise out of the impugned common
judgment passed by the Division Bench of the High Court of
Judicature at Jabalpur (Madhya Pradesh) passed in Writ Appeal
Nos. 1510/2007, 1509/2007, 1508/2007, 1511/2007 and
1535/2007, by which the Division Bench of the High Court
dismissed the said appeals, however, while dismissing the said
appeals, modified the order passed by the learned Single Judge
and directed that instead of preparing a fresh select list, the
establishment would conduct the fresh exercise for promotion,
and further directed that the establishment would be obliged to
prescribe minimum necessary cut off merit marks out of 100 so
that the rule of senioritycummerit is made applicable.
3. The facts leading to the present appeals in nutshell are
as under:
The dispute is with respect to promotion to the post of
Junior Management Scale II in the Mahakoshal Kshetriya Bank.
That in exercise of powers conferred under Section 29 of the
Regional Rural Banks Act, 1976, the Central Government, in
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consultation with National Bank and the Sponsor Bank, i.e., the
UCO Bank, formulated the Rules called Regional Rural Banks
(Appointment and Promotion of Officers and other Employees)
Rules, 1998 (hereinafter referred to as the ‘Rules’). That the said
Rules were notified in the gazette on 29.07.1998. Third Schedule
of the aforesaid Rules, inter alia, provides for appointment of two
different categories of officers. It also provides for eligibility as
well as mode of selection in respect thereto. As regards Scale II
officers, it was specifically provided that the source of
appointment shall be 100% by promotion and the criterion for
promotion shall be on the basis of senioritycummerit. That
mode of selection was that the candidate shall be selected by a
committee on the basis of written test, interview and the
assessment of ‘performance appraisal reports’ for the preceding
five years as officer in Scale I/Field Supervisor. The division of
marks was as follows:
Written Test 60 marks
Interview 20 marks
Performance appraisal 20 marks
Total 100 marks
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3.1 As regards written test, it provided that the candidate
shall be required to appear for written test comprising of two
parts, viz., Part ‘A’ and Part ‘B’. The 60 marks allotted to written
test were further divided as :
Part ‘A’ 30 marks
Part ‘B’ 30 marks
3.2 As per the aforesaid rules, a list of only those
candidates who secure minimum 40% of marks in each part (Part
‘A’ & Part ‘B’) shall be prepared and shall be called for interview.
As regards interview and ‘performance appraisal reports’ for
preceding five years’ service, under the rules, no minimum
qualifying marks were provided.
3.3 The respondentbank for the purpose of promotion
from Scale I to Scale II issued a memo dated 30.03.2004 and
informed all the Branch Managers and all the departments of the
Head Office to submit ‘performance appraisal reports’ of
preceding five years’ of Scale I officers. The bank also issued
guidelines in consonance with the Rules, vide guidelines dated
12.04.2004.
3.4 For promotion of Scale I officers to the available 16
posts of Scale II, the Bank called 64 candidates/officers in the
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ratio of 1:4. The written test was conducted on 16.04.2004 and
32 candidates out of 64 were declared qualified in the written
test, as it was found that they secured more than 40% marks in
the written examination. That thereafter, the appellants along
with other eligible candidates (32 in numbers) appeared in the
interview conducted on 18/19.09.2004. That vide memo dated
09.10.2004, the bank published the results of successful
officers/candidates shown to have been promoted to Scale II
posts. That the appellants herein who were also placed in the
seniority list came to be promoted, by virtue of their seniority,
having secured more than minimum marks in the written test
and having passed the interview and performance appraisals.
However, it appears that three persons, namely, Sunil Kumar
Gupta, Gopal Singh Raj and Rajesh Kumar Jain (respondents
herein), though much junior in the seniority list of Scale I
officers, were also included in the list of promoted officers, issued
vide memo dated 9.10.2004 and three senior persons were
ignored, namely, Anil Kumar Singh, K.C. Soni and N.K. Sharma.
Therefore, the aforesaid three persons, namely, Anil Kumar
Singh, K.C. Soni and N.K. Sharma and one another, namely,
Praveen K. Jaggi filed Writ Petition Nos. 12127/2004,
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12125/2004, 12126/2004 and 11005/2004 challenging the
order dated 09.10.2004 whereby the aforesaid three persons,
namely, Sunil Kumar Gupta, Gopal Singh Raj and Rajesh Kumar
Jain were placed below Anil Kumar Singh, K.C. Soni and N.K.
Sharma in the seniority list. Before the learned single Judge, it
was the case on behalf of the original writ petitioners that
promotions to the post of Scale II were solely on the basis of
senioritycummerit and the rules provide that only those
candidates who secure minimum 40% marks in the written test
shall be called for interview and there being no minimum
qualifying marks provided so far as marks obtained in interview
and performance appraisal reports and therefore the original writ
petitioners being senior and they obtained more than 40% marks
in the written test, they ought to have been promoted to the post
of Scale II.
3.5 However, it was the case on behalf of the bank that as
per the administrative instructions, a conscious decision was
taken by the Selection Committee fixing the bench mark of
minimum 12 marks to be secured in the interview as well as
performance appraisals (each) and only those candidates who
secured in all 24 marks in minimum in the interview as well as
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the performance appraisals were required to be considered for
promotion and accordingly those candidates who secured 24
marks minimum in the interview as well as the performance
appraisals were promoted.
4. The learned Single Judge of the High Court did not
accept the same and observed that such a procedure and
insisting securing 24 marks minimum in the interview and the
performance appraisals was not provided under the rules and
therefore such a procedure was not permissible by administrative
instructions. The learned Single Judge also observed that the
aforesaid criteria would violate the principle of senioritycum
merit and by such a criteria the principle of meritcumseniority
is applied, which is contrary to the rules. Therefore, while
allowing the aforesaid writ petitions and quashing and setting
aside the list dated 9.10.2004, the learned Single Judge directed
to prepare a fresh selection list by prescribing the minimum
necessary cut off marks out of 100 so that the rule of seniority
cummerit should be made applicable and thereafter may
proceed to prepare a fresh selection list and after prescribing the
necessary minimum/cut off marks the persons who secure the
minimum merit marks on the basis of their seniority shall be re
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arranged and accordingly a fresh order of promotion shall be
passed by the bank.
5. Feeling aggrieved and dissatisfied with the common
impugned judgment and order passed by the learned Single
Judge of the High Court, the bank as well as the appellants
herein – original respondents before the learned single Judge
preferred writ appeals before the Division Bench of the High
Court. By common impugned judgment and order, the Division
Bench has not only dismissed the appeals, but while dismissing
the appeals has set aside the direction issued by the learned
Single Judge to prepare a fresh merit list and has further
directed that instead of preparing a fresh selection list by
prescribing the minimum necessary cut off merit marks out of
100, the bank shall conduct the fresh exercise for promotion. The
Division Bench also observed that the bank would be obliged to
prescribe minimum necessary cut off merit marks out of 100 so
that the rule of senioritycummerit is made applicable.
6. Feeling aggrieved and dissatisfied with the impugned
common judgment and order passed by the Division Bench of the
High Court dismissing the appeals and further directing to
conduct the fresh exercise for promotion, the original appellants
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before the Division Bench of the High Court (those who were
promoted pursuant to the list/order dated 09.10.2004) have
preferred the present appeals.
7. Shri R.S. Hegde, learned advocate appearing on behalf
of the appellants has vehemently submitted that in the facts and
circumstances of the case, the Division Bench has committed a
grave error of law and facts while quashing the entire selection
test/list and ordering fresh exercise of promotion.
7.1 It is vehemently submitted by the learned counsel
appearing on behalf of the appellants that in an appeal against
the judgment and order passed by the learned Single Judge
ordering fresh exercise of promotion and when it was nobody’s
case before the Division Bench that the entire selection test has
been vitiated and even that was not the observation made by the
learned Single Judge, the Division Bench could not have/ought
not to have set aside the entire selection test and/or not to have
ordered the fresh exercise of promotion.
7.2 It is further submitted by the learned counsel
appearing on behalf of the appellants that even otherwise both,
the learned Single Judge as well as the Division Bench have
materially erred in observing and holding that by prescribing
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minimum 12 marks each to obtain in the oral interview as well as
performance appraisal reports, the principle of senioritycum
merit has been given go by.
7.3 Relying upon the decision of this Court in the case of
Chairman, Rushikulya Gramya Bank v. Bisawamber Patro
reported in (2013) 4 SCC 376 , it is submitted by the learned
counsel appearing on behalf of the appellants that prescription of
benchmark merit criterion based on aggregate performance in
written test, interview and performance appraisal report, besides
criteria fixed by rules for grant of promotion on senioritycum
merit basis is permissible.
7.4 It is further submitted by the learned counsel
appearing on behalf of the appellants that in the case of Rajendra
Kumar Srivastava v. Samyut Kshetriya Gramin Bank reported in
(2010) 1 SCC 335 , it is held by this Court 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 senioritycummerit.
7.5 Making the above submissions and relying upon the
above two decisions of this Court, it is vehemently submitted by
the learned counsel appearing on behalf of the appellants that in
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the present case both, the learned Single Judge as well as the
Division Bench erred in holding that prescribing the benchmark
to obtain 12 marks each in the interview and performance
appraisal reports shall be defeating the principle of seniority
cummerit and as such the same is contrary to the law laid down
by this Court in the aforesaid two decisions.
7.6 It is further submitted by the learned counsel
appearing on behalf of the appellants that even otherwise it is
required to be noted that out of 16 candidates promoted, 13
candidates were as such above the original writ petitioners in the
seniority list and the objection was only with respect to three
persons who were promoted and who were junior to the original
writ petitioners. It is submitted that therefore at the most the
learned Single Judge could have set aside the promotion with
respect to only those three promotes who were junior to the
original writ petitioners. However, learned advocate appearing on
behalf of the appellants herein has fairly conceded that after all
those candidates who crossed the benchmark even in interview
and the performance appraisal reports, thereafter the promotions
are to be made on the basis of senioritycummerit.
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8. Learned advocate(s) appearing on behalf of the original
writ petitioners has supported the order passed by the learned
Single Judge and has/have submitted that as rightly observed
by the learned Single Judge and to that extent the learned
Division Bench that by prescribing the benchmark of obtaining
12 marks each in interview and performance appraisal reports,
the principal of senioritycummerit has been given go by.
8.1 It is submitted by the learned advocate(s) on behalf of
the original writ petitioners that as such in the advertisement,
the only eligibility criteria was that a candidate shall have to
obtain minimum 40% marks in the written test and no minimum
marks were prescribed for the interview and the performance
appraisal reports.
8.2 Relying upon the decision of this Court in the case of
B.V.Sivaiah v. K. Addanki Babu reported in (1998) 6 SCC 720, and
another decision of this Court in the case of Sarva U.P.Gramin
Bank v. Manoj Kumar Chak reported in (2013) 6 SCC 287 , it is
prayed to dismiss the present appeals.
9. We have heard learned counsel for the respective
parties at length.
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At the outset, it is required to be noted that the
promotion to the post of Junior Management Scale II is governed
by the principal of senioritycummerit. It is true that as per the
rule and as per the eligibility criteria mentioned in the rule, 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 rules, 60 marks are allotted for written test, 20
marks for interview and 20 marks for performance appraisal
reports. The rule further provides that a candidate shall be
required to appear in the written test comprising of two parts, viz,
Part ‘A’ and Part ‘B’. 60 marks allotted for written test are further
divided as under:
Part ‘A’ 30 marks
Part ‘B’ 30 marks
The rule further provides that a list of only those candidates who
secure minimum 40% marks in each part shall be prepared and
such candidates shall be called for interview. It is true that the
rule do not provide any minimum qualifying marks for interview
as well as performance appraisal. However, at the same time, the
authority/Selection Committee took a conscious decision to fix
the benchmark of having 12 marks each out of 20 marks each in
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interview as well as performance appraisal reports. Both the
learned Single Judge as well as the Division Bench found fault
with the same and observed and held that further fixing the
qualifying marks/benchmark to obtain minimum 12 marks in
the interview and the performance appraisal was not permissible
and that it would defeat the principle of senioritycummerit. The
learned Single Judge therefore directed to prepare the fresh
promotion list by prescribing the minimum necessary cut off
merit marks out of 100 so that the rule of senioritycummerit
could be made applicable.
10. When the aforesaid order passed by the learned Single
Judge was challenged before the Division Bench, the Division
Bench, by the impugned judgment and order, not only dismissed
the appeals, but also set aside the directions issued by the
learned Single Judge to prepare a fresh select list by prescribing
the minimum necessary cut off merit marks out of 100 and
directed the establishment to conduct the fresh exercise for
promotion, meaning thereby, the Division Bench set aside the
entire select list. In the absence of any finding by the learned
Single Judge that the select list was vitiated on account of any
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irregularity, the Division Bench was not justified in setting aside
the entire select list and ordering fresh exercise for promotion.
11. Now so far as the finding recorded by the learned
Single Judge and the Division Bench that further fixing the
qualifying marks/benchmark of obtaining minimum 12 marks
each in the interview and the performance appraisal reports is
not permissible and it would defeat the principle of seniority
cummerit is concerned, as observed and held by this Court in
the case of Bisawamber Patro (supra) , the same is permissible.
This Court was considering a similar situation and the similar
rules governing promotions from Junior Management Scale I to
Middle Management Scale II. In the case before this Court, the
rule was similar to the rule in the present case. In the rule
before this Court, also there was no minimum qualifying marks
for the interview provided. However, the bank in addition to the
requirement of 40% qualifying marks in the written test further
fixed the qualifying marks of 60% for general candidates and 55%
marks for SC/ST candidates on the aggregate marks comprising
written test, performance appraisal reports and interview. That
thereafter the names of all the candidates who got 60% or above
in the aggregate were put in the list for promotion strictly as per
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their seniority. All candidates were promoted in the order of
seniority, irrespective of anyone among them having got marks in
excess of 60% in the aggregate. The candidates unsuccessful in
getting promotion challenged the select list on the similar
grounds on which the select list in the present case was
challenged. The High Court allowed the writ petition holding that
prescription of the benchmark of 60% marks in the aggregate
was in violation of the promotion policy and the rules governing
the field. Consequently, the High Court allowed the writ petition
and directed the bank to make fresh selection in accordance with
the rules. Reversing the order passed by the High Court, and
even after considering the decision of this Court in the case of
B.V.Sivaiah (supra) ( the judgment which has been relied upon by
the High Court), this Court observed that the procedure adopted
by the bank to further fixing the qualifying marks in the written
test, performance appraisal reports and the interview has not
violated the principle of senioritycummerit. While observing so,
this Court took into consideration the observations made by this
Court in para 13 of another decision of this Court in the case of
Rajendra Kumar Srivastava (supra) .
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12. Applying the law laid down by this Court in the
aforesaid two decisions to the facts of the case on hand, we are of
the opinion that both, the learned Single Judge as well as the
Division Bench erred in holding that further fixing the qualifying
marks to be obtained in the interview and the performance
appraisal reports, viz., 12 minimum marks each to be obtained in
interview and the performance appraisal reports and fixing such
a benchmark would violate the principle of senioritycummerit.
As the promotion to the post of Junior Management Scale II shall
be made on the basis of senioritycummerit, the only
requirement would be that after it is found that the candidates
have possessed the minimum necessary merit, namely, minimum
40% qualifying marks in the written test and minimum 12
marks each out of 20 marks each in interview and the
performance appraisal reports respectively, thereafter the
candidates are required to be promoted in the order of seniority,
irrespective of anyone among them having obtained more marks.
13. In view of the above and for the reasons stated above,
the present appeals are allowed. The judgment and order passed
by the learned Single Judge of the High Court as well as the
impugned judgment and order passed by the Division Bench are
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hereby quashed and set aside. It is directed that the respondent
authority shall prepare a fresh select list for promotion to the
post of Junior Management Scale II and to consider the case of
those candidates who crossed the benchmark of having obtained
minimum 40% qualifying marks in the written test and having
obtained minimum 12 marks each out of 20 marks each for
interview and performance appraisal reports respectively and
those candidates be promoted in the order of seniority,
irrespective of anyone among them having obtained more marks.
14. The present appeals are allowed to the aforesaid
extent. No order as to costs.
……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI; ……………………………….J.
APRIL 09, 2019. [M.R. SHAH]
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