JUDGMENT
1. This writ petition has been filed for quashing the circular dated 30.11.2004 which provides for minimum qualifying marks for promotion to be made on the basis of seniority-cum-merit and for quashing the promotion list (Annex. 5) by which the respondent Nos. 3 to 26 stood promoted.
2. The facts and circumstances giving rise to this case are that the petitioner had been working as a Branch Manager, Scale-II in a Bank (which has not been impleaded as a respondent). Further, promotion to Scale-Ill was to be made on the basis of the seniority-cum-merit as provided under the promotion policy dated 29.7.1998. On 30.11.2004, a circular was issued that the Board of Directors have given their approval for filling 26 vacancies of Scale-Ill in consonance with the promotion policy and it further fixed the minimum marks for promotion. The interviews etc. of all the candidates were held on 15.12.2004. Petitioner was also interviewed along with others but could not get promotion. However, the respondent Nos. 3 to 26 have been promoted. Hence, this petition.
3. Shri Ravi Kiran Jain, learned senior Counsel assisted by Ms. Swati Agarwal, learned Counsel for the petitioner, has submitted that the promotions were to be granted on seniority-cum-merit but by providing the criteria of fixing the marks in the promotion policy dated 30.11.2004, the policy has been converted into merit-cum-seniority, which is not permissible, and hence the said circular as well as the promotion list is liable to be quashed.
4. On the contrary, Shri A.B. Saran, learned senior Counsel appearing for the respondent Nos. 1 and 2 has submitted that similar circulars applicable in different Banks have been subject to judicial scrutiny in large number of cases and promotions made under such circulars have always been upheld. Therefore, there is no occasion for this Court to interfere with the said promotions.
5. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
6. This writ petition has been filed impleading the Chairman of the Bank and the Board of Directors through its Chairman but the Bank has not been impleaded. We fail to understand how such a writ petition can be entertained, as it is a settled law that writ does not lie against the officers of the State Authority. We are, therefore, of the opinion that the petition itself is liable to be rejected only on this sole ground in view of the judgments of the apex Court in Chief Conservator of Forests, Government of Andhra Pradesh v. Collector and Ors., (2003) 3 SCC 472; Ranjeet Mal v. General Manager Northern Railway and Anr., AIR 1977 SC 1701; and State of Punjab v. O.G.B. Syndicate Ltd., AIR 1964 SC 669. In the instant case, the petitioner faced the interview, participated in the promotion process with open eyes knowing the terms and conditions of the circular dated 30.11.2004. We are, therefore, of the view that the writ petition for challenging the promotion policy as contained in the circular cannot be entertained at his behest once he failed to get the promotion.
7. Acquiescence, being a principle of equity, must be made applicable in a case where the order has been passed and complied with without raising any objection.
8. A Constitution Bench of the Hon'ble Supreme Court, in Pannalal Binjraj and Ors. v. Union of India and Ors., AIR 1957 SC 397, had explained the scope of estoppel observing that once an order is passed against a person and without raising any objection he submits to the jurisdiction or complies with such order, he cannot be permitted to challenge the said order merely because he could not succeed there, for the reason that such conduct of that person would disentitle him for any relief before the Court. A similar view has been reiterated by the Hon'ble Supreme Court in Manak Lal v. Dr. Prem Chand Singhvi and Ors., AIR 1957 SC 425 ; Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors., AIR 1969 SC 329.
9. If all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee, they cannot turn around and contend later when they found they were not selected, by challenging that procedure and contending that the marks prescribed for interview and confidential reports are disproportionately high and the authorities cannot fix a minimum to be secured either at interview or in the assessment on confidential report.
10. When a candidate appears at the examination without protest and is subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise.
11. The result of interview itself on merit, cannot be successfully challenged by a candidate who get a chance to be selected in the interview. It is thus held that these writ petitions, challenging the criterion for promotion, are not maintainable at the instance of candidates who have participated in the selection without raising any objection. [Vide Dr. G. Sarena v. University of Lucknow, AIR 1976 SC 2428 ; Maj. Chandrabhan Singh v. Latafai Ullah Khan and Ors., AIR 1978 SC 1814: Om. Prakash Shukla v. Akhilesh Kumar Shukla and Ors., AIR 1986 SC 1043 ; Madan Lal and Ors. v. State of Jammu and Kashmir and Ors., AIR 1995 SC 1088; and Utkal University and Ors. v. Dr. Nrusingha Charan Saranqi and Ors., JT 1999 (1) SC 101].
12. In State of Punjab and Ors. v. Krishan Niwas, AIR 1997 SC 2349, the Hon'ble apex Court examined a case where the services of the employee were terminated in exercise of the powers under Article 311(2)(b) of the Constitution. The Appellate Court reduced the punishment imposed by the trial Court. In the Departmental Appeal, the order of dismissal was also converted into that of a lesser punishment. The employee had acted upon it and joined the post. He was held not entitled to challenge the reduced punishment as he was stopped by his conduct.
13. In Union of India and Anr. v. N. Chandrasekharan and Ors.. AIR 1998 SC 795, the Hon'ble apex Court observed as under :
"It is not in dispute that all the candidates were made aware of the procedure for promotion before they sat for the written test and before they appeared before the Departmental Promotion Committee. Therefore, they cannot turn around and contend later when they found that they were not selected, by challenging that procedure...."
14. In Power Control Appliances and Ors. v. Sumeet Machines Put. Ltd., (1994) 2 SCC 448, the apex Court held as under :
"Acquiescence is sitting by, when another is invading the rights.... It is a course of conduct inconsistent: with the claim... It implies positive acts; not merely silence or inaction such as involved in latches. In Harcourt v. White, 54 ER 382, Sir John Romilly said : 'It is important to distinguish mere negligence and acquiescence'. Therefore, acquiescence is one facet of delay.... If the acquiescence in infringement amounts to consent, it will be a complete defence as was laid down in Mouson (J.G). and. Co. v. Boehm, (1884) 26 Ch. D. 406. The acquiescence must be such as to lead to the inference of a licence sufficient to create a new right in the defendant as was laid down in Rodgers v. Nowill, (1847) 2 De GM & G 614."
15. Similar principle had been made applicable even in contractual matters. (Vide State of Orissa and Ors. v. Narain Prasad and Ors., (1996) 5 SCC 740; and State of Rajasthan and Ors. v. Anil Kumar Sunil Kumar and Party and Anr., JT 2000 (4) SC 186]. Undoubtedly, inaction in every case does not lead to an inference of implied consent, or acquiescence as has been held by the Hon'ble apex Court in P. John Chandy & Co. (P) Ltd. v. John P. Thomas, (2002) 5 SCC 90. But the Court has to examine the facts and circumstances in an individual case.
16. The petitioner did not raise the issue at the time of selection and in view of the settled legal proposition, as explained above, he cannot be permitted to agitate the issue merely because he could not succeed in the selection process.
17. Even otherwise, on merit, the issue of seniority-cum-merit and merit-cum-seniority has been considered by the Hon'ble apex Court time and again.
A seven Judges Bench of the Hon'ble Supreme Court, in State of Kerala and Anr. v. N.M. Thomas and Ors., AIR 1976 SC 480, 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."
18. In Sadi Lal v. Deputy Commissioner, Gurgaon and Ors., 1974 (1) SLR 217 ; and Govind Ram Purohit 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.
19. In Sr. Jagathigowda C.N. and Ors. v. Chairman, Kaweri Gramin Bank and Ors., AIR 1996 SC 2733, 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."
20. In view of the aforesaid judgment of the Hon'ble Supreme Court, even if the promotion is to be made on the basis of 'seniority-cum-merit', the junior person having a better merit can be promoted ignoring the claim of the senior person. The principle of merit-cum-seniority is an approved method of selection. The Hon'ble Supreme Court in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, held that promotion to 'selection grade posts" is not automatic on the basis of ranking in Gradation List and the promotion is primarily based on merit and not on seniority alone. The Court held as under :
"The circumstance that these posts are classed as 'Selection Grade Posts' itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available."
21. In State of Orissa v. Durga Charan Das, AIR 1966 SC 1547, the Constitution Bench of Supreme Court held that the promotion to a selection post is not a matter of right which can be claimed merely by seniority.
22. In Union of India v. Mohan Lal Kapoor, AIR 1974 SC 87, 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."
23. In B.V. Sivaiah v. Addanki Babu, AIR 1998 SC 2565, 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.
24. In Union of India v. Lt. Gen. Rajendra Singh Kadyan, AIR 2000 SC 2513, 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 of 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."
25. The said principle was approved, reiterated and followed by the Hon'ble apex Court in Central Council for Research in Ayurveda and Siddha v. Dr. K. Santhakumari, (2001) 5 SCC 60; and Bibhudatta Mohanty v. Union of India and Ors., (2002) 4 SCC 16.
26. In K. Samantaray v. National Insurance Company Ltd., AIR 2003 SC 4422, 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., JT 1990 (3) SC 468, 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.
27. There may be different situation altogether where the statutory Rules or a promotion policy provides for promotion on the basis of seniority subject to rejection of unfit. In that case, promotions are to be granted on the basis of seniority unless the person has been awarded some adverse entry or has been imposed some punishment making him disentitled for promotion.
28. In State of U.P. v. Jalal Uddin and Ors., JT 2004 (8) SC 374, a similar view has been reiterated and affirmed.
29. A Division Bench of this Court in Rajendra Kumar Srivastava and Ors. v. Samyut Kshetriya Gramin Bank and Ors., 2001 Lab IC 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 of seniority-cum-merit, a minimum eligibility requirement can be fixed by the authorities."
30. The Court further held that the writ petition was liable to be dismissed only on the ground of acquiescence as the petitioner therein faced the promotion process without any protest.
31. Another Division Bench while deciding Writ Petition No. 7385 of 1989, Kamal Prakash Singhal v. Chairman, Aligarh Gramin Bank, Aligarh, along with other petitions, vide judgment and order dated 7.4.2004, while deciding a similar case fixing marks for promotion, upheld the circular 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.
32. While deciding the Writ Petition No. 39772 of 2004, Birendra Pal and Anr. v. Union of India and Ors., this very Bench, vide judgment and order dated 27.9.2004, approving a similar circular providing for similar marks, upheld the validity of the circular and dismissed the petition refusing to interfere with the promotion process or promotion list.
33. In view of the above, it is apparent that this Court has taken a consistent view upholding the promotion policy as well as the promotions made thereunder. We do not see any ground or take a view contrary to it. Even otherwise, judicial discipline and decorum does not require any interference by this Court. There are no compelling circumstances to hold that the aforesaid judgment requires to be considered as all the cases have been decided following the dictate of the Hon'ble Supreme Court given in the cases, referred to hereinabove.
34. Even otherwise, the petition is not maintainable by virtue of application of doctrine of acquiescence as well as for non-impleadment of necessary party.
Petition lacks merit and is accordingly dismissed. No costs.