*HON’BLE SRI JUSTICE R.KANTHA RAO + W.P.No.7665 of 2000 % Date:09.12.2014 Between:
# Somu Venkata Siva Prasad and two others …Petitioners And $ Chaitanya Grameena Bank, Tenali and (19) others …Respondents ! Counsel for petitioners: Sri Vedula Srinivas ^ Counsel for respondents: Sri M.Panduranga Rao Sri Abhinand Kumar Shavli < GIST:
>HEAD NOTE:
? Cases referred:
1. 1998(6) SCC 720
2. (2009) SCC 311
3. (1998) 6 SCC 720
4. AIR 200-3 SC 4422
5.(2009) SCC 515
THE HON’BLE MR JUSTICE R. KANTHA RAO
WRIT PETITION NO. 7665 OF 2000
Date:09.12.2014
Between:
Somu Venkata Siva Prasad and two others …Petitioner And Chaitanya Grameena Bank, Tenali and (19) others ….Respondents HON’BLE SRI JUSTICE R. KANTHA RAO WRIT PETITION NO. 7665 OF 2000
ORDER:
This writ petition is filed under Article 226 of the Constitution of India for mandamus seeking a direction to declare the procedure adopted by the first respondent while making promotions from Scale-I Officer to Scale-II Officer in furtherance to Circular No.34, dated 20.04.1999 as arbitrary, illegal, unconstitutional and to set aside the promotions of the respondents 2 to 20 and also to issue a consequential direction to the first respondent to make promotions afresh by strictly following the rule of seniority-cum- merit.
2. The short facts necessary for considering the issue involved in the present writ petition may be stated as follows:
3. The petitioners and respondents 2 to 20 joined as Scale-I officers in the year 1984 in the first respondent bank. Their next promotion was to the officers of Scale-II and the criterion of promotion is seniority-cum-merit. In the year 1995 the first respondent gave promotions to Scale-II Officers in respect of 8 vacancies. But, the said promotions were set aside by the orders in W.P.Nos.10500 of 1995 and 14459 of 1995. Thus, the 8 promotional posts fell vacant for consideration afresh by virtue of the orders passed in the aforesaid writ petitions. Subsequently, 12 more vacancies arose in the years 1996, 1997 and 1998. The first respondent issued Circular No.34, dated 20.04.1999 contemplating to fill up 20 vacancies on the basis of seniority- cum-merit. It was also mentioned in the circular that the selection for the 8 posts of the year 1995 will be taken up first and the selection for the remaining 12 posts will be taken up later. It was also mentioned that the unsuccessful candidates pertaining to the selection to the 8 posts would be considered for the next selection of the 12 posts, but the marks obtained by them in the earlier interview alone will be considered for the next interview and they need not appear for fresh interview. 60 marks were allotted for performance and 15 marks were allotted for interview. It was stipulated that 50% of the total marks will have to be obtained for being considered for promotion subject to obtaining of at least 33.33% marks allocated to the interview i.e. 5 marks in the interview. In the present writ petition the criteria mentioned in the circular for promotion stating it to be on seniority-cum-merit basis is challenged as illegal, arbitrary and contrary to rule of seniority-cum-merit.
4. The contention of the petitioners is that when the promotion is based on seniority- cum-merit, the comparative assessment of merit cannot be made and a senior employee with minimum merit should be given promotion. It is submitted by the petitioners that the procedure adopted by the first respondent runs contrary to the principle of seniority-cum-merit since even if a candidate gets more than 50% in the aggregate marks of 75, if he fails to get 5 marks in the interview, he will not get the promotion. The system therefore, according to the petitioners overlooks the performance of the senior candidate as a minimum mark to be secured in the interview is given over emphasis and also a deciding edge. It is said that the marks to be allotted in the interview is a matter of discretion and it leaves a large gray area at the disposal of the management.
5. The petitioners, therefore, seek a direction in the present writ petition to set aside the promotions given to the respondents 2 to 20 on the basis of the aforementioned selection process and a consequential direction to the first respondent to make promotions afresh by strictly following the rule of seniority-cum-merit.
6. The first respondent in its counter-affidavit opposed to grant the reliefs prayed for in the writ petition, contending interalia as under:
In W.P.No.10500 of 1995 a fresh seniority lists was directed to be prepared in accordance with ranking given by the selection committee and accordingly the first respondent has drawn up the seniority list of the officers afresh as per their merit ranking. In W.A.No.685 of 1995 and batch, the Division Bench of this Court directed that the promotions effected shall be reviewed and fresh selections shall be made in accordance with law laid down by the Hon’ble Supreme Court in the case of B.V. SUBBAIAH v. K. ADDANKI BABU. As per the direction of this Court, the first respondent bank reviewed the promotions effected in the year 1995 and fresh elections were made following the rule of seniority-cum-merit as defined/interpreted/clarified by the Hon’ble Supreme Court in the aforesaid judgment.
7. The benchmark/minimum qualifying mark prescribed was 50% of the aggregate of the marks allocated for the performance appraisal and the interview taken together. It was further stipulated that the candidate for being promoted should secure a minimum of 33.33% or 5 marks allocated for interview. It is submitted that it was proposed to complete the process of review of promotions effected in the year 1995 in respect of 8 vacancies that have arisen prior to 25.05.1995 at the first instance and to take up the process of selection for filling up the vacancies that have arisen during the years 1996, 1997 and 1998 subsequently. Nextly, it is submitted that since the review of promotions in respect of the first lot of 8 vacancies and selection for promotions for the vacancies arose subsequently were taken up on the same day, it was proposed to draw up the selection list for the 8 vacancies at the first instance and to consider the selection of the unsuccessful candidates along with the freshers for the second lot of 12 vacancies on the basis of the marks already awarded to them at the time of review without subjecting them for a second interview and to draw up the selection list for the second lot of vacancies. Accordingly, the selection list for the second lot of the 12 vacancies was drawn up. The entire process was not objected to by any of the candidates as it did not cause any prejudice to the participants. According to the first respondent bank, prescribing the benchmark/minimum qualifying marks was strictly in accordance with the rule of seniority-cum-merit as defined/clarified/interpreted in the aforesaid judgment of the Hon’ble Supreme Court first cited. It is submitted that the petitioners participated in the promotion process and were not successful since they could not secure the minimum qualifying mark/bench mark. They having taken a chance and participated in the promotion process and having not come out successfully are now estopped from questioning the method adopted by the bank. The procedure to be adopted for the selection was duly circulated by the first respondent bank by way of Circular No.34, dated 20.04.1999. The petitioners had not chosen to question the procedure proposed to be adopted by the first respondent and having participated in the process of selection and having accepted the method proposed to be adopted cannot turn round and question the validity of the same. Lastly, it is submitted that the procedure followed in effecting the promotions was strictly in accordance with the rules of the bank as well as the principle laid down by the Hon’ble Supreme Court in its judgment first cited, and as such the writ petition is liable to be dismissed.
8. The only question requires determination in the present writ petition is that prescribing minimum marks for the interview which vests with the discretion of the management to disqualify any candidate is against the principle of seniority-cum- merit in the matter of effecting the promotions.
9. The Hon’ble Supreme Court in HARYANA STATE ELECTRONICS DEVELOPMENT CORPORATION LIMITED AND OTHERS v. SEEMA SHARMA AND OTHERS explained the difference between the merit-cum-seniority and seniority-cum-merit. According to the Supreme Court “in merit-cum-seniority, greater emphasis is on merit and seniority comes into operation when merit of two candidates is more or less equal. On the other hand, the principle of seniority-cum- merit is concerned, it gave greater importance to seniority and promotion to a senior person cannot be denied unless he is found totally unfit on merit to discharge the duties of higher post. The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit.”
10. For ascertaining minimum necessary merit for discharging duties in a particular cadre, the employer can fix the minimum criteria which the candidates seeking promotion has to satisfy. Even in cases of promotions based on seniority-cum-merit, the candidate has to satisfy the minimum criteria prescribed by the employer in relation to merit. However, a candidate who is more meritorious cannot be given promotion in preference bypassing the candidate who acquires the benchmark of minimum merit prescribed by the employer. Explaining the criteria relating to seniority-cum-merit, the Supreme Court in B.V. SIVAIAH AND OTHERS v. K. ADDANKI BABU AND OTHERS held as follows:
“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 which in turn may be based on 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. In the instant case, the first respondent bank by Circular No.34 dated 20.04.1999 notified the criteria prescribed by the Board of the first respondent in respect of the promotions which were to be made to the Scale-II officers. In the said circular it was specifically stipulated that apart from securing 50% of the aggregate marks, the candidate shall also secure minimum of 33.33% i.e. 5 marks in the interview. The petitioners took a chance and participated in the promotion process and questioned the procedure adopted by the first respondent bank when they had not come out successfully. In view of the judgment of the Supreme Court first cited, it is well within the competence of the employer to prescribe the minimum marks, even for the performance in the previous post or in the interview. Therefore, prescribing minimum marks for interview by itself cannot be said to be offending the criteria of seniority- cum-merit. Merely because the interview board has a discretion to award marks in the interview, it cannot be said that no minimum marks cannot be prescribed for the interview as there is scope for the board for exercising their discretion improperly. The employer may prescribe different criteria for different promotional posts since the duties required to be discharged vary from cadre to cadre. Therefore, prescribing minimum marks itself cannot be assailed on the ground that it offends the principle of merit-cum-seniority. Even in the judgment relied on by the learned counsel appearing for the petitioners in K. SAMANTARAY v. NATIONAL INSURANCE COMPANY LTD., the Supreme Court held as follows:
“While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, nor has the effect of violating of any statutory scope of interference and other relatable matters. The decision in B. V. Sivaiah case (third supra) is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of the respondent-employer that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority- cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts.”
12. Thus, the judgment relied on by the learned counsel appearing for the petitioners is of no assistance to the petitioners since it cannot be said that it is not within the competence of the employer to prescribe the minimum qualifying marks for the interview. The said competence of the employer cannot be questioned on the ground that there would be scope for improper exercise of discretion in awarding the marks in the interview. Further, in K.A. NAGAMANI v. INDIAN AIRLINES AND OTHERS, the Supreme Court held as follows:
“That the appellant who had admittedly participated in the selection process and having availed the adequate opportunity to compete with all other eligible candidates at the selection without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion.”
13. In the instant case also, the petitioners were given adequate opportunity to compete with all the eligible candidates, the eligible criteria was notified well in advance by means of issuing a circular, the petitioners participated in the selection process along with the contesting respondents and now they cannot turn round and say that awarding minimum marks for the interview offends criteria of the seniority- cum-merit, as they were interviewed earlier in respect of the vacancies of promotion in relation to 8 posts, in my view they need not be again interviewed and the marks secured by them in the interview held in respect of 8 posts can be taken into consideration while considering their promotion for the posts of the remaining 12 posts which was also conducted on the same day. Therefore, no prejudice has been caused to the petitioners and the first respondent bank has not violated the right to equality guaranteed under Articles 14 and 16 of the Constitution.
14. In view of the above, the writ petition fails and the same is dismissed without any order as to costs.
Miscellaneous petitions, if any, filed in this writ petition shall stand closed.
R. KANTHA RAO, J Date:09.12.2014
Note:
L.R. copy to be marked.
B/O
CCM
THE HON’BLE MR JUSTICE R. KANTHA RAO
WRIT PETITION NO. 7665 OF 2000
Date:09.12.2014