Shriram Tomar & Anr.Etc. vs Praveen Kumar Jaggi .

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

JUDGMENT

M.R. SHAH, J.

Leave granted.

Signature Not Verified

2. As common question of law and facts arise in this Digitally signed by VISHAL ANAND Date: 2019.04.09 18:07:33 IST Reason:

group of appeals, and as such they arise out of the impugned

1 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

2 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

3 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

4 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,

5 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

6 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

7 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

8 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

9 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 10 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.

11

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.

12 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

13 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

14 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

15 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).

16

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

17 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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