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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2760 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.16961 OF 2008)
Chairman, Rushikulya Gramya Bank … Appellant
Versus
Bisawamber Patro & Others …Respondents
WITH
CIVIL APPEAL NO.2761 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.17546 OF 2008)
WITH
CIVIL APPEAL NO.2762 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.17974 OF 2008)
WITH
CIVIL APPEAL NO.2763 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.17977 OF 2008)
WITH
CIVIL APPEAL NO.2764 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.18417 OF 2008)
WITH
CIVIL APPEAL NO.2765 OF 2013 Page 2
(ARISING OUT OF SLP (CIVIL) NO.18898 OF 2008)
WITH
CIVIL APPEAL NO.2766 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.19292 OF 2008)
AND
CIVIL APPEAL NO.2767 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.19301 OF 2008)
J U D G M E N T
Aftab Alam,J.
1. Leave granted in all the special leave petitions.
2. All the appeals are at the instance of a Regional Rural Bank, namely,
Rushikulya Gramya Bank, and the matter relates to promotion from one scale to
another. Out of the eight appeals, six relate to promotion from Junior
Management Scale-I to Middle Management Scale-II and in the remaining two
appeals (arising from SLP (Civil) No.17974 of 2008 and SLP(civil) No.18898
of 2008), the matter relates to promotion from Clerk to Junior Management
Scale-I.
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3. The short question that arises in these appeals is
whether it is open to
the management of the Bank to lay down a benchmark, besides the criteria fixed
by the rules for grant of promotion on seniority-cum-merit basis.
4. The appellant - bank issued a circular No.024/2004-05, dated June 23,
2004 notifying the vacancies inter alia in the seventeen posts of Middle
Management Scale-II and eight posts of Junior Management Scale-I. The
circular stated that the process of promotion shall be conducted as per the
promotion rules of the Government of India. For promotion to the post of
Middle Management Scale-II, the zone of consideration was four times the
number of vacancies and for promotion to the post of Junior Management Scale
– I, all eligible candidates were permitted to take the exam.
5. The rules governing promotion from Junior Management Scale-I to
Middle Management Scale-II, in so far as relevant for the present, are as under:-
*2 (a) to (c) xxxxxxxx
(d) Whether promotion to be made on seniority basis or merit:
Promotion shall be made on the basis of seniority-cum-merit.
(e) Eligibility: xxxxxxx
(f) Mode of Selection: The Selection of the
candidates shall be made by the
committee on the basis of written
test, interview and assessment of
Performance Appraisal Reports for
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the preceding five years as an
officer in Sealed/Field Supervisor.
(g) Composition of
Committee: xxxxxxxxx
(h) Reckoning of the
minimum eligibility: xxxxxxxxx
(i) Number of candidates
to be considered for
promotion: xxxxxxxxx
(j) Selection process for
promotion: The selection shall be on the
basis of performance in the written
test, interview and performance
Appraisal Report for preceding
five years as per the division of
marks given below.
(A) Written Test: 60 marks
(B) Interview: 20 marks
(C) Performance Appraisal
Reports: 20 marks
TOTAL marks: 100 marks
(A) Written test (60 marks)
The candidates shall be required to 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 written test shall be further divided as under:
Part “A” 30 marks
Part “B” 30 marks
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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.
(B) Interview (20 marks):
There shall be no minimum qualifying
marks for the interview.
(C) Performance appraisal
Reports (20) marks):
Performance Appraisal Reports for the preceding five years shall
be considered for the purpose of awarding marks for promotion.”
In case of promotion from Clerk to Junior Management Class-I scale
the division of marks is as under:-
“(A) Written test : 70 marks
(B) Interview marks : 20 marks
(C) Performance Appraisal : 10 marks.
Reports
Total Marks : 100 marks.”
70 marks allotted to written test are further divided as under:
“English : 35 marks
Bank Law Practice : 35 marks
Total Marks : 70”
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6. A candidate in order to qualify must secure a minimum of 40 per cent
marks each in English and banking law practice.
7. The appellant – bank, in addition to the requirement of 40%
qualifying marks in the written test further fixed the qualifying mark of 60% for
general candidates and 55% marks for SC/ST candidates on the aggregate
marks comprising written test, performance appraisal reports and interview.
8. The names of all candidates who got 60% or above in the aggregate
were put in the list for promotion strictly as per their seniority. All candidates
were promoted in order of seniority, irrespective of anyone among them having
got marks in excess of 60% in the aggregate.
9. The respondents in each of the appeals who were unsuccessful in
getting promotions, challenged the select list of the promoted candidates by
filing writ petitions before the Orissa High Court. The High Court heard W.P.
(civil) No.14359/2003 (giving rise to civil appeal, arising from SLP(Civil)
No.19292/2008)) as the leading case. It allowed the Writ Petition holding that
prescription of the benchmark of 60% marks in the aggregate was in violation
of the promotion policy and the rules governing the field. It, accordingly,
allowed the Writ Petition and directed the appellant-bank to make fresh
selection in accordance with the Rules. (The other writ petitions giving rise to
the other appeals were disposed of following the judgment passed in W.P.
(Civil) No.14359/2004).
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10. In taking the view that the prescription of the minimum qualifying
marks in the aggregate was in contravention of promotion based on senioritycum-merit, the High Court relied upon the decisions of this Court in State of
Kerala v. N.M. Thomas1
, Bhagwandas Tiwari v. Dewas Shajapur Kshetriya
Gramin Bank2
, , and B.V. Sivaiah v. K. Addanki Babu3
.
11. In a more recent decision in Rajendra Kumar Srivastava and others
v. Samyut Kshetriya Gramin Bank and others4
, this Court re-visited the issue of
fixing a high percentage as the minimum qualifying marks for promotion on
seniority-cum-merit basis. It examined all the three decisions (besides others)
relied upon by the High Court, namely, Bhagwandas Tiwari (supra), B.V.
Sivaiah (supra) and N.M. Thomas (supra).
12. In Rajendra Kumar Srivastava, the Court framed the following two
questions for consideration:
“8.On the contentions urged, the following two
questions arise for our consideration:
(i) Whether minimum qualifying marks could be
prescribed for assessment of past performance and
interview, where the promotions are to be made on the
principle of seniority-cum-merit?
1
(1976) 2 SCC 310
2
(2006) 12 SCC 574
3
(1998) 6 SCC 720
4
(2010) 1 SCC 335
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(ii) Whether the first respondent Bank was justified in
fixing a high percentage (78%) as the minimum
qualifying marks (minimum merit) for promotion?
13. Answering both the questions in the affirmative, the Court on an
analysis of the earlier decisions observed and held that:
“13. Thus it is clear that a process whereby eligible
candidates possessing the minimum necessary merit in the
feeder posts is first ascertained and thereafter, 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-cummerit”. 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 senioritycum-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.
14. The next question is whether fixing of 78% as minimum
qualifying marks (that is, as the minimum necessary merit) is
unreasonable and arbitrary. The Rules in this case provide that
the mode of selection is by interview and assessment of
performance reports for the preceding three years as officer
Scale I. The seniority list of officers in Scale I was published on
4-12-1996. Thereafter, the promotion process was held by
earmarking 60 marks for assessment of performance reports (at
the rate of 20 marks per year) and 40 marks were allotted for
interview. The officers possessing the minimum qualifying
marks of 78%, were then promoted on the basis of seniority.
What should be the minimum necessary merit for promotion, is
a matter that is decided by the management, having in mind the
requirements of the post to which promotions are to be made.
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The employer has the discretion to fix different minimum merit,
for different categories of posts, subject to the relevant rules.
For example, for promotions at lower levels, it may fix lesser
minimum qualifying marks and fix a comparatively higher
minimum qualifying marks for higher posts.”
14. The decision of the High Court, thus, appears to be clearly contrary
to the view taken by this Court in Rajendra Kumar Srivastava.
15. The decision of the High Court is, accordingly, set aside. The writ
petitions filed by the respondents before the Orissa High Court are dismissed.
The select list prepared by the appellant-bank is affirmed. The appeals are
allowed but with no order as to costs.
................................................J.
(Aftab Alam)
................................................J.
(Ranjana Prakash Desai)
New Delhi,
April 2, 2013.
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