Issue involved in this writ petition is related to the promotion of the petitioner from the cadre of 'Clerk-cum- Cashier' to the post of 'Scale-I Officer' in the 1st respondent Bank. The petitioner belongs to a Scheduled Tribe Community. Ext.P1 is the Rule governing the method of promotion, namely 'Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1998' (Hereinafter called the Rules for short). By virtue of Ext.P2 notification 40 vacancies of 'Scale-I Officers' was proposed to be filled up. Ext.P3 is the memo notifying the details of selection process. With respect to promotion to the post of Officer Scale-I, name of 687 candidates coming within the zone of consideration was published. It was prescribed that there will be reservation of 15% seats for the Scheduled Castes and 7.5 % for the Scheduled Tribes. It is stipulated that under the current promotion process, six vacancies will be reserved for the Scheduled Caste candidates and three vacancies will be reserved for the Scheduled Tribes candidates. The petitioner attended the written test conducted. Ext.P4 is the list published after the written test including the names of candidates eligible to participate in the interview. The petitioner's name was included as Sl.No.5, which is the first among the Schedule Tribe Candidates. But after the interview, when select list was published as per Ext.P5, the petitioner's name was omitted, instead names of respondents 3 to 5 were included as candidates selected from the reserved quota for Scheduled Tribes. When the petitioner represented her grievance before the authorities, Ext.P8 reply was issued stating that the total marks scored by the petitioner under the promotion process would not entitle her for inclusion in the select list. It was also informed that, due to the reasons of confidentiality the bank is unable to reveal details of the marks scored by the petitioner. It is challenging Exts.P5 and P8 this writ petition is filed. Inter alia the petitioner seeks direction against respondents 1 and 2 to promote her to the post of 'Officer Scale-I' in one of the vacancies reserved for Scheduled Tribes, with effect from 08/07/2008 ( the date on which Ext.P5 list was published) and to grant all the consequential benefits.
2. The method of selection enumerated in Ext.P1 rules is that, the promotion shall be on the basis of the performance in the written test, interview and performance appraisal reports with respect to the last three years. It is stipulated that the division of marks will be as, 70 for written test, 20 for interview, and 10 for Performance Appraisal. It is specifically mentioned that those who secure a minimum of 40 % marks in the written test alone will be called for the interview and there will be a relaxation of 5% of minimum qualifying marks with respect to Scheduled Caste and Scheduled Tribe candidates. In Ext.P1 rule it is specifically mentioned that, there shall not be any minimum qualifying marks for the interview. Contention of the petitioner is that, since it is evident from Ext.P4 list that the petitioner had secured the minimum qualifying marks in the written test, exclusion of her candidature on the basis that she has not scored the minimum prescribed total marks in the selection is not sustainable.
3. Contentions on behalf of the respondent Bank is that the selection to the post of 'Officer Scale-I' is not wholly based on the written test. It is stated that the selection committee had fixed a cut-off mark on an aggregate/total basis. With respect to marks obtained in the written test, interview and performance appraisal, 59 was fixed as total cut-off marks for General candidates and 54 was fixed as cut-off marks for Scheduled Caste and Scheduled Tribe candidates. The petitioner who belongs to ST category had failed in securing the minimum of 54 marks, since she had secured only 46.74 marks in the aggregate. According to the respondent Bank, since the petitioner failed to qualify the minimum cut-off marks on the aggregate, she could not be promoted as Scale-I Officer.
4. The issue involved is directly covered in a Division Bench Decision of this Court in WA No.2667/2007 (Judgment dated 18/09/2008). The above case relates to the very same Bank with respect to promotion from the post of 'Clerk cum Cashier' to 'Scale-I Officer'. There also the petitioner belongs to Scheduled Caste. The selection committee have taken a decision to fix cut-off marks of 59 out of 100 for General candidates and 55 out of 100 for Scheduled Caste Candidates. This court observed that, when the mode of selection is on the basis of 'seniority- cum- merit' and when minimum qualifying marks was prescribed only for the written test, the petitioner who secured the minimum marks in the written test could have been promoted instead of her juniors. This court placed reliance on the decision of the Honourable Apex court in Hemani Malhotra v. High Court of Delhi [(2008) 7 SCC 11]. The honourable Supreme Court in the said case held that, the authority can make rules to regulate the selection by prescribing minimum marks, both for written examination and viva voce. But if the minimum marks are not prescribed for viva voce before commencement of the selection process, the authority cannot, either during the selection process or after the selection process, add an additional requirement/qualification that the candidate should also secure a minimum mark in the interview.
5. So also, this court considered decision of the hon'ble apex court in B.V.Sivaiah And Others v. K.Addanki Babu And Others [(1998) 6 SCC 720). It is held therein that, while applying the principle of 'seniority-cum-merit', what is required to be considered is the inter-se seniority of the employees who are eligible for promotion. Such seniority is normally determined on the basis of the length of service, circumstances or on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the method of 'seniority- cum-merit' gives effect to such rights following from the seniority. The hon'ble apex court found that the criteria 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. The hon'ble Supreme Court observed therein that, if the candidate who secured the highest marks were selected for promotion, it will not be in consonance with the principle of 'seniority-cum-merit'.
6. Referring to yet another decision in Harigovind Yadav v. Rewa Sidhi Gramin Bank & Ors.(AIR 2006 SCW 2822), this court in the judgment in W.A.No.2667/2007 observed that, when no cut-off marks were stipulated for the interview and when the candidate had secured more than the minimum required marks in the written test, no cut-off marks can be prescribed for the interview thereafter. The selection committee cannot select candidates on the basis of comparative merit, after the interview, ignoring the seniority. Merely because those who got higher marks were duly selected on the basis of the seniority, will not save the situation. Such a procedure could not have been adopted if the promotion is made on the basis of 'seniority-cum-merit'. On the other hand, it could have been adopted if the promotion is made on the basis of 'merit-cum-suitability'. In the decision of the Honourable Supreme Court in Union of India and Others v. Lt. Gen. Rajendra Singh Kadyan and Another [(2000) 6 SCC 698] it is pointed out that seniority- cum- merit postulates the requirement of certain minimum merit or satisfying a bench mark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of 'seniority- cum- fitness' and 'seniority- cum- merit'.
7. Learned Standing counsel appearing for the respondent Bank controverted the above narrated propositions. Firstly it is pointed out that the Bank had taken up the judgment in W.A No.2667/2007 before the Honourable Supreme Court and a Special Leave Petition filed was already admitted and the operation of the judgment stands stayed. He pointed out that, if no minimum qualifying marks is stipulated for interview and performance appraisal or if cut- off mark is stipulated only for the written test, any candidate who secured the minimum qualifying mark in the written test need to be promoted based on the seniority. In such case the interview as well as performance appraisal will become futile and only an empty formality. Attention of this court is drawn to Ext.P3 memo issued by the Bank with respect to the selection process on the basis of Ext.P2 Notification. There also it is specifically mentioned that only those candidates who secure a minimum of 40 % marks in each part (each subject) of the written test will be included in the list of candidates eligible for interview. It also specifies that there shall be no minimum qualifying marks for the interview. But in the process of performance appraisal reports it is mentioned that performance appraisal reports for the preceding 5 years will be considered for the purpose of awarding marks and actual marks obtained as per the half yearly performance will be the total and converted into marks out of 10. It further says, “Board of Directors have authorised the Staff Selection Committee to fix a cut-off mark for assessment of merit”. Question arises as to such an authorisation on the selection committee to fix a cut-off mark in the performance appraisal reports for assessment of merit, will entitle the selection committee to prescribe a total minimum qualifying mark to be stipulated. It is not in dispute that the Rules, the notification or even the Ext.P3 memo does not stipulate fixation of total minimum qualifying marks of 59% for general candidates or 54% for SC/ST candidates. Going by dictum contained in Hemani Malhotra's case (cited supra) if minimum marks are not prescribed for interview or performance appraisal before commencement of the selection process, the authority concerned cannot either during the selection process or after the selection process add an additional requirement or qualification that the candidate should also secure minimum marks in the interview or performance appraisal. Hence this court is inclined to follow the decision rendered by the Division Bench in W.A No. 2667/2007.
8. Learned Standing counsel had pointed out another common judgment, rendered by a learned judge of this court in W.P(C) No.28428/2009 and connected cases (Judgment dated 19/11/2013). Referring to a decision of the Honourable Supreme Court in Rajendra Kumar Srivastava and Others v. Samyut Kshetriya Gramin Bank and Others [(2010) 1 SCC 335] it is observed that, even though the rules did not provide for any specific criteria, prescribing a minimum qualifying marks is valid. It is purely a matter within the discretion of the management. But this court is of the considered opinion that there is no dictum laid in Rajendra Kumar's case (supra) permitting fixation of any cut-off marks after starting of the selection process. Merely because operation of the judgment in W.A.No.2667/2007 is stayed by the honourable apex court, this court is not persuaded to take a different stand. Further the judgment of the Division Bench is having binding force as a precedent on this court.
9. Under the above mentioned circumstances this court is of the considered opinion that, since the petitioner had qualified in the written test and she was invited for the interview and performance appraisal, she should have been considered for promotion based on her seniority in the cadre of 'Clerk-cum-cashier'. Despite service of notice from this court the respondents 3 to 5 have not chosen to enter appearance or to contest the case. From Ext.P4 probability list, evidently the petitioner stands first among the Scheduled Tribe candidates, based on the marks secured in the written test when considered on the basis of seniority. As per Ext.P3 it is evident that three vacancies were reserved for Scheduled Tribe candidates. Under such circumstances, the petitioner ought to have been selected. The 5th respondent is the junior most candidate among the selected candidates. If the petitioner is selected the 5th respondent has to go out of the list. Hence it is declared that the petitioner will be entitled to get the benefit of promotion from the date on which respondents 3 to 5 were promoted. But the petitioner will be entitled for actual pay in the promoted post only with effect from 01/11/2014 onwards.
10. Hence the above writ petition is hereby allowed.
The respondents 1 and 2 are directed to issue appropriate orders promoting the petitioner to the post of 'Officer Scale-I' with notional effect from the date on which the respondents 3 to 5 were promoted, if necessary after reverting the 5th respondent. It is made clear that no recovery shall be effected from the 5th respondent with respect to any pay and allowance disbursed on the basis of the promotion granted, even if he is reverted. It is made clear that the petitioner will be entitled for higher pay in the promoted post only with effect from 01/11/2014. However, weightage in service benefits, other than pay, should be given to the petitioner considering the date of the notional promotion.
Sd/- C.K. ABDUL REHIM JUDGE MJL