JUDGMENT B.S. Chauhan and Arun Tandon, JJ.
1. Heard counsel for the parties.
Nobody has put in appearance on behalf of respondent Nos. 4 to 46 despite service by publication.
2. This special appeal is directed against the judgment and order of the Hon'ble Single Judge dated 07th November, 1998 passed in Civil Misc. Writ Petition No. 12315 of 1990; Rajendra Prasad Yadav v. Chairman, Sanyukt Kshetriya Gramin Bank, Balrampur Branch, Azamgarh. The facts giving rise to the present special appeal are as follows:
Sanyukt Kshetriya Gramin Bank, Balrampur Branch, Azamgarh is a rural bank. Petitioner-appellant was appointed on the post of Junior Clerk-cum-Cashier on 17.02.1982. He was promoted on the post of Senior Clerk-cum-Cashier in the year 1984. The next promotional post in the cadre is of Field Supervisor. The petitioner-appellant filed writ petition before this Court challenging therein that the criteria for promotion on the post of Field Supervisor is seniority-cum-merit, persons junior to petitioner and having inferior service record have been granted such promotion on the post of Field Supervisor under the select list published on 12.04.1990. He, therefore, prayed that he may also be granted similar promotion from the date persons junior to him have been promoted.
3. On behalf of the respondents counter affidavit was filed in the writ petition and it was contended that the criteria for promotion had been laid down under the circular of the Board dated 10th April, 1989, wherein after interview assessment of performance for promotion to the post of Field Supervisor had been made. Petitioner could not succeed therefore superseded. Reliancehas been placed upon the judgment of the Hon'ble Supreme Court in the case of Sri Jagathigowda CN and Ors. v. Chairman Cauvery Gramina Bank and Ors. .
4. The Hon'ble Single Judge, after hearing Counsel for the parties, under the impugned judgment and order held that petitioner had appeared in the interview and since he had not been selected it cannot be said that his any legitimate claim has been ignored. It has further been held that the petitioner could not demonstrate that the persons mentioned in paragraphs 12 and 16 of the writ petition had performed poorly in interview and assessment report was equal to that of the petitioner or lesser than that of the petitioner. Lastly It has been recorded that since there is no allegation of bias or mala fide against the selection committee neither is been alleged that the petitioner had outstanding or very good performance, he is not entitled to any relief.
4.1 The Hon'ble Single Judge in last but one paragraph of the said judgment has further noticed that certain facts stated for the first time in the rejoinder affidavit do make out a case in favour of the petitioner but since no opportunity has been given to the respondents to counter the said facts, the facts so pleaded in the rejoinder affidavit can not be taken note of.
4.2 The judgment of the Hon'ble Single Judge is being questioned basically on the ground that the Hon'ble Single Judge has failed to appreciate that the criteria, as admittedly applicable for promotion on the post of Field Supervisor, in the facts of the case was seniority-cum-merit. The criteria has been explained by the Hon'ble Supreme Court in the series of judgments and it has-been held that it is open to employer to fix a minimum standard which every candidate must clear for being promoted under the said criteria and all those candidates who clear the said standard become entitled for promotion in order of seniority. It is, therefore, submitted that the Hon'ble Single Judge has failed to appreciate the aforesaid legal proposition qua criteria to be applied for promotion under the rules applicable. It is also contended that if certain new facts had been stated in the rejoinder affidavit, the same could not have been ignored, at best time could have been granted to respondents to file reply to the additional facts stated in the rejoinder affidavit, which was neither prated for nor granted.
5. The first contention raised on behalf pf the petitioner may be examined with reference to the law laid down by the Hon'ble Supreme Court determining the criteria to be applied in case of promotion where rules provide for seniority-cum-merit as the test.
A Seven Judges Bench of the Hon'ble Supreme Court, In State of Kerala and Anr. v. N.M. Thomas and Ors. , observed as under:
Seniority cum merit means that given the minimum necessary merit requisite for efficiency of administration, the, senior, though less meritorious, shall have priority. This will not violate Articles 14, 16(1) and 16(2) of the Constitution of India.
In Sadi Lal v. Deputy Commissioner, Gurgaon and Ors. 1974 (1) SLR 217; and Govind Ram Purohlt and Anr. v. Jagjiwan Chandra and Ors. 1999 SCC (L & S) 788, a similar view has been reiterated. Thus, it is apparent that the Apex Court provided for giving seniority a weightage without compromising with the merit as the candidate had to possess the minimum requisite merit.
In Sr. Jagathigowda C.N. and Ors. v. Chairman, Kaweri Gramin Bank and Ors. , the Apex Court has observed as under:
It is settled proposition of law even while making promotion on the basis of seniority cum merit, the totality of the service record of the officer concerned has to be taken into consideration. The Performance Appraisal Forms are maintained primarily for the purpose that the same are taken into consideration when the person concerned is considered for promotion to the higher rank.
In Union of India v. Mohan Lal Capoor , it was held as under:
For inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale.
In B.V. Sivaiah v. K. Addanki Babu , the Hon'ble Supreme Court held that the principle of "merit-cum-seniority" lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal.
In Union of India v. Lt. Gen Rajendra Singh Kadyan , it was observed as under:
Wherever fitness is stipulated as the basis of selection it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. "Seniority-cum-merit" postulates the requirement of certain minimum merit or satisfying a benchmark 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-merit Merit-cum-suitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.
The said principle was approved, reiterated and followed by the Hon'ble Apex Court in The Central Council for Research in Ayurveda and Siddha v. Dr. K. Santhakumari ; and Bibhudatta Mohanty v. Union of India and Ors. .
6. In K. Samantaray v. National Insurance Co. Ltd. , the Hon'ble Apex Court explained the distinction and difference between principles of merit-cum-seniority and seniority-cum-merit, placing reliance upon earlier judgments in Sant Ram (supra); Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association and Ors. v. Union of India and Ors. ; and held that for the purpose of promotion, even on seniority-cum-merit, weightage in terms of numerical marks for various categories, the authority Is permitted to work out the marks for individual head otherwise the word 'merit would loose its sanctity.
A Division Bench of this Court in Rajendra Kumar Srivastava and Ors. v. Samyut Kshetriya Gramin Bank and Ors. 2001 Lab. I.C. 4086, considered the similar provision applicable in a similar Bank providing for promotion on similar circular observing as under:
No doubt in Sivaiah's case (supra) more than 50% marks set apart for interview and performance but in that case only those who secured highest marks were ultimately promoted and that was declared illegal by the Supreme Court. The present case is distinguishable. This is not a case where those who got highest marks in the interview and appraisal were promoted rather those persons who got minimum of 78% marks were considered eligible and from them promotion was made on the basis of seniority. It is settled law even where the selection is done on the basis seniority-cum-merit, a minimum eligibility requirement can be fixed by the authorities.
Another Division Bench while deciding Writ Petition No. 7385 of 1989, Kamal Prakash Singhal v. The Chairman Aligarh Gramin Bank, Aligarh along with other petitions, vide judgment and order dated 07.04.2004, upheld the circular fixing standing marks for promotion and dismissed the petition. While deciding the said case, reliance had been placed upon the earlier judgment of this Court in Rajendra Kumar Srivastava (supra); and Vinod Kumar Verma v. Union of India and Ors. 2004 (1) ESC 19.
7. The Hon'ble Supreme Court in the latest judgment in the case of Hari Govind Yadav v. Rewa Sidhi Gramin Bank and Ors.; has clearly laid down that it is open to the employers to lay down a minimum standard for the purposes of judging the merit of the candidate within the eligibility zone and all those persons who clear the minimum standard are entitled for promotion in order of seniority. In view of the aforesaid settled legal proposition, which has not been taken note of by the Hon'ble Single Judge It was open to the employer in the facts of the case to fix a minimum standard which a candidate should achieve before he could be granted promotion having regard to his seniority. But it was not open to the employer to make appointments on the basis of relative merit secured by the candidates on the basis of the marks fixed for various disciplines ignoring the seniority. We are of the opinion that the judgment and order of the Hon'ble Single Judge has run contrary to the law laid clown by the Hon'ble Supreme Court, as noticed herein above.
8. We may also record that if certain facts are stated in the rejoinder affidavit for the first time, the same cannot be ignored by a Court of Law, inasmuch as the statements so made are supported by affirmance on oath. These new facts, however, may not be taken into consideration unless and until an opportunity is afforded to the respondents in the writ petition to controvert these new facts stated in the rejoinder affidavit. Therefore, the Hon'ble Single Judge-was not justified in ignoring the facts, which were stated in the rejoinder affidavit. Normally we would have remanded the matter for examination afresh to the Hon'ble Single Judge, however, such a course is not being followed in the present case, inasmuch as the persons, who had already been promoted and who had been impleaded as respondent Nos. 4 to 46 are not before us, directing their impleadment in the writ petition and notices being issued to them afresh on restoration of the writ petition to its original number, which is of the year 1998, would only prolong the dispute for many more years. In such circumstances, we feel it appropriate to dispose of the present writ petition as well as the appeal with liberty to petitioner to approach the Board of Directors of the Bank itself at the first instance in respect of the grievance raised qua his supersession with specific reference to the reasons recorded herein above by us qua the criteria to be applied in the case of seniority-cum-merit.
9. Accordingly, the petitioner is granted liberty to file his representation ventilating all his grievances before the Chairman of the Bank within two weeks from today along with certified copy of this order as well as photostat copies of the judgment in support of his claim. On such representation being filed, the Chairman of the Bank shall place the same before the Board of Directors, which may, after affording opportunity of hearing to the parties concerned, take fresh decision in the matter strictly in accordance with law by means of a reasoned speaking order, preferably within eight weeks thereafter. With the aforesaid observations/directions the present special appeal is disposed of finally.