With the grievance that the promotion policy of the second respondent Bank (vide circular PAD/47/98-99 dated 16.12.1998) follows the principle "merit-cum-seniority", instead of "seniority-cum-merit" in the matter of promotion of officers, the petitioner-Union is before this Court with this writ petition.
2. The Government of India, Ministry of Finance, by notification dated 29.7.1998, in exercise of the powers conferred by
Section 29 of the Regional Rural Banks Act, 1976 read with
Section 17 thereof and in supersession of the Regional Rural Banks (Appointment and Promotion of Officers and other employees) Rules, 1988, after consultation with the National Bank and the sponsor Banks specified in the Second Schedule to the Rules, made the Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998.
3. As per the said Rules, appointment to the post of Scale III Officer shall be made only by promotion and such promotion shall be made on the basis of "seniority-cum-merit". Similarly, in respect of appointment to the post of Scale II Officer also, it shall be only by promotion and the same shall be made on the basis of "seniority-cum-merit".
4. Insofar as Scale III Officers are concerned, the selection shall be on the basis of performance in the interview and Performance Appraisal Reports for preceding five years as per the division of marks, viz. 25 marks for interview and 75 marks for Performance Appraisal Report. Similarly, for Scale II Officers, 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 division of marks, viz. 60 marks for written test, 20 marks for interview and 20 marks for Performance Appraisal Report.
5. In pursuance of the said Rules, the second respondent issued the impugned promotion policy dated 16.12.1998. Clause 1 of the said policy is thus:
"Basis of Promotion:
Promotion shall be made on the basis of "seniority cum merit".
The mode of selection for Scale I Officers is prescribed in Clause 3 which is as follows:
"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 the preceding five years as an Officer in Scale I/Field Supervisor."
Clause 7 prescribes the selection process for promotion, as under:
(a) Written Test : 60 marks
(b) Interview : 20 marks
(c) Performance : 20 marks Total : 100 marks A) Written Test : The candidates shall (60 marks) 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 to written test shall be further divided as under:
Part A : 30 marks Part B : 30 marks A list of only those candidates who secure a minimum of 40% marks in each part shall be prepared and such candidates shall be called for interview.
"The select list of officers drawn by the Committee shall be based on seniority in their immediately proceeding scale or cadre to which they belong in Bank's service."
6. The said promotion policy is challenged in this writ petition mainly on the ground that it prescribes promotion only on the basis of merit and seniority is not given due consideration. This, according to the petitioner, is against the Regional Rural banks (Appointment and Promotion of Officers and other Employees) Rules, 1988 as well as the judgment of the Supreme Court in B.V.Sivaiah v. K.Addanki Babu [(1998) 6 SCC 720]. The learned counsel for the petitioner would submit that if merit alone is taken as criteria, then, the seniority will have no relevance and as such, the senior people will never get an opportunity for promotion. He would rely on the judgment of the Hon'ble Supreme Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank [(2006) 6 SCC 145] also.
7. In the counter filed by the second respondent, in paragraph 4, it is stated as follows:
"... for the written test, the Bench mark is 40%. If a candidate secures the Bench mark, then he is subjected to an interview. At the interview, if he is declared suitable, then the senior most among the candidates who had secured minimum Bench mark is promoted. Even if a candidate secures high marks in the written test, he will not be promoted if there is a senior who has secured the Bench marks and qualified at the interview. This procedure is in conformity with the principle of seniority-cum-merit referred to by the Supreme Court in the decision reported in 1998 (3) LLN 951 B.V.Siviah and others (vs) K.Adanthi. We have strictly followed the judgment of the Hon'ble Supreme Court. We are giving in the annexure the list of candidates who qualified in the written test and those who have been promoted. It will be noticed that even though 146 officers have qualified in the written test, irrespective of the marks secured by them in the written test, the Committee for considering the promotion has selected 48 officers in the order of seniority amongst the officers found suitable at the interview. This only confirms our contention that promotion was based on seniority-cum-merit."
8. The learned counsel appearing for the second respondent would demonstrate from the annexure appended to the counter as to how the promotion has been all along given strictly following the principle of "seniority-cum-merit". He has taken me through the said list to show that though some officers had secured less marks in the qualifying test, they were promoted on the basis of their seniority. Thus, according to the respondents, the grievance of the petitioner Union is misconceived.
9. I have considered the rival submissions.
10. Before going into the merits of the case, let me analyse as to what is the difference between "seniority-cum-merit" and "merit-cum-seniority", as concluded by the Hon'ble Supreme Court in the case of B.V.Sivaiah cited above. In paragraph 18 of the said judgment, the Supreme Court has held as under:
"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."
11. Again in paragraph 37 of the same judgment, the Supreme Court has held as under:
"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."
12. The above judgment in B.V.Sivaiah case came to be considered by another Division bench of the Hon'ble Supreme Court in Harigovind Yadav v. Rewa Sidhi Gramin Bank [(2006) 6 SCC 145], wherein, in para 21, the Supreme Court has held as under:
"... 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 grounds 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 as also in the earlier round of litigation of the appellant, the promotion of the third respondent and non-promotion of the appellant by adopting the very same procedure is liable to be interfered with.
22. Interviews can be held and assessment of performance can be made by the Bank in connection with promotions. 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". ... "
13. A perusal of the above two judgments would make one to clearly understand that insofar as the promotion on the basis of "seniority-cum-merit" is concerned, the promotion policy can prescribe a procedure to assess the merit of the candidates so as to ensure whether they come within a particular Bench mark. If there are several candidates who have entered into the area of consideration, after having secured the Bench mark, then, the selection shall be made only on the basis of seniority and not on the basis of mark secured in the test. While the principle "seniority-cum-merit" lays greater emphasis on seniority, "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role, becoming relevant only when merit is approximately equal.
14. According to the petitioner, a reading of the impugned promotion policy would show that seniority is never taken into account for the purpose of promotion and that the promotion is made only on the basis of the marks secured. But, that is not the correct understanding of the policy. A perusal of the counter filed by the respondent and also the annexure appended thereto would make it very clear that the promotion policy impugned in the writ petition provides for promotion only on the principle of "seniority-cum-merit" and not on "merit-cum-seniority". Paragraph 4 of the counter extracted above would show that if the Bench mark of 40%, as prescribed for the written test, is secured by the candidate, then, he would be allowed for interview and thereafter, the selection is made only on the basis of seniority and not on the basis of marks obtained in the written test as well as interview. Thus, in my considered opinion, though the promotion policy does not say in ever so many words that the selection would be made from the candidates who have secured the Bench mark, only on the basis of seniority, in its implementation all along it has proved so. In view of the said position, I do not think that the petitioner could have any more grievance in this regard. To make it clear, it is reiterated that the impugned policy shall be interpreted for all practical purposes in future, only as clarified in paragraph 4 of the counter (as extracted in para 7 of this order). So, no more adjudication is required in this writ petition, except the above clarification.
In the result, the writ petition stands disposed of with the clarification indicated above.
kpl To The Secretary to Government Ministry of Finance Department of Economic Affairs (Banking Division) Parliament Street New Delhi