M.M. Naik and Others vs Pragati Krishna Grameena Bank and Others

Ravi V. Malimath, J.—The case of the petitioners is that they were working as Officers in the Junior Management Grade Scale-I with respondent No. 1-Bank. The respondent-Bank published a staff circular dated 28.01.2005 prescribing the mode of promotion of Officers JMGS-I to MMGS-II cadre in terms of Annexure-A. Accordingly, a written test was held on 09.02.2003. The list of successful candidates was published in the staff circular dated 11.04.2005 at Annexure-B. They were all invited for interview. In terms of circular dated 20.06.2005 vide Annexure-C a list of 29 candidates were shown to have been promoted to Officer Scale-II cadre with effect from 20.06.2005. The petitioners in the list were shown at Sl. Nos. 5, 16 and 19 respectively. Aggrieved by their non-promotion, the petitioners have filed these writ petitions.

Learned counsel for the petitioners contends that the promotion being made on the basis of marks obtained is opposed to the criteria for selection based on seniority-cum-merit. Hence, the instant petitions were filed by the three petitioners seeking to quash the circular dated 20.06.2005 and to direct the respondent-Bank to promote the petitioners with the date of their eligibility and other consequential benefits. In support of his case the learned counsel for the petitioners relies on the judgment of the Hon''ble Supreme Court reported in B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., , with reference to Paras-18, 26 and 32 to contend that having fulfilled the minimum marks that are required, the promotion has to be thereafter made on the basis of seniority-cum-merit. That merit cannot be a criteria for making a promotion when the promotion is based on seniority-cum-merit. Therefore, the action of the respondents in granting promotion based on merit-cum-seniority is opposed to the scheme of promotion.

Statement of objections have been filed by respondent Nos. 4, 5, 8, 12, 13, 15, 18, 21, 23 and 26 to 29. Statement of objections are also been filed by respondent No. 1-Bank. Certain additional documents have also been produced by the respondent-Bank. The case of the respondents is that there is no error committed by the bank in granting promotion to the respondents herein. That in terms of Annexure-R3 to the statement of objections the same contains the list of all the 90 candidates who were called for the interview. On taking into account the marks secured for the five previous years, the written test as well as interview marks have been awarded to each one of the candidates. That the respondents 2 to 30 have secured much higher marks than the petitioners. That a bench mark has been fixed at 71.45. Therefore, the candidates who have secured 71.45 have been promoted, namely respondent Nos. 2 to 30. Since the petitioners have obtained marks less than 71.45 they have not been promoted. Further more, the process of promotion is made purely on seniority-cum-merit. Therefore, the contention of the petitioners cannot be accepted. In support of their case, they rely on the judgment of the Hon''ble Supreme Court reported in Rajendra Kumar Srivastava and Others Vs. Samyut Kshetriya Gramin Bank and Others, , with reference to Para-18 wherein the Hon''ble Supreme Court held that when it is demonstrated that the minimum marks have been fixed with an intention to favour someone or to exclude someone, the Courts can interfere. That when the minimum marks are shown to have been fixed to defeat or nullify the mode of seniority-cum-merit, there may be a case for interference. That in other cases, there is no scope for interference with the procedure adopted to ascertain the minimum required merit. Therefore, he pleads that the bench mark as determined by the respondent-Bank is just and appropriate and it does not offend the promotion based on seniority-cum-merit.

The primary contention of the petitioners is that the promotion has been based on merit-cum-seniority. That Annexure-R3 would itself demonstrate their contention. That even though the petitioners have obtained less marks than the respondents, the selection was based on merit-cum-seniority. That once the candidates have secured the minimum marks as prescribed in Annexure-A, thereafter should be promoted based on seniority. If the candidate does not even get the minimum marks, then obviously he would not be entitled for promotion. However, every one of the candidates who have obtained minimum marks should thereafter be promoted only on the basis of seniority. Since merit has been determined in the written test, interview etc. to realign the candidates based on the marks obtained in the interview is nothing but a selection based on merit-cum-seniority and not seniority-cum-merit. The contention of the respondent is the opposite. They contend by placing reliance on the judgment of Rajendra Kumar''s case that they are entitled to fix the minimum standard even while observing the criteria for promotion of seniority-cum-merit.

The respondents have earmarked 71.45 as a bench mark. Therefore, all the candidates who have obtained above 71.45 were promoted. It is in this regard, that the marks obtained by each one of the parties to the writ petition becomes relevant. The petitioners and respondent Nos. 2 to 30 have obtained marks as follows:

Therefore, it is evident that the petitioners have scored lesser marks than the respondents 2 to 30. So far as the fixing of bench mark is concerned, learned counsel for the petitioners places reliance on the judgment of Sivaiah''s case wherein the selection made therein was held to be erroneous and even though the promotion was to be made on the basis of seniority-cum-merit the Court held that the promotion in effect was a merit-cum-seniority promotion. The said judgment was considered by the subsequent judgment of the Hon''ble Supreme Court in Rajendra Kumar''s case. Therein, the judgment of Sivaiah''s case was referred to. In so considering, the Hon''ble Supreme Court has held at para-18 as follows:

"18. Whether the guidelines/rules adopted for assessing the minimum necessary merit by prescribing marks under several heads or by prescribing a specific minimum mark, is reasonable or arbitrary, would depend upon the facts of each case. If it is demonstrated that the minimum marks were fixed with the intention of favouring someone or to specifically exclude someone, the courts may interfere. Similarly, where the minimum marks are shown to have been fixed to defeat or nullify the mode of seniority-cum-merit for promotion, there may be a cause for interference. In other cases, there is very little scope to interfere with the procedure adopted to ascertain the minimum required merit." 7. Therefore, this cannot be considered a situation wherein the bench mark has been fixed with an intention to favour or to exclude someone or to defeat or nullify the mode of seniority-cum-merit for promotion. It is only in such situations that the Supreme Court has held that there can be interference by the Court and not in any other case. This is a case where a minimum bench mark has been fixed. That even though a minimum marks has been prescribed in terms of Annexure-A that would not preclude the respondent-bank to fix the bench mark for the purpose of promotion. That such a bench mark fixed by it does not offend the criteria as laid down by the Hon''ble Supreme Court at para-18 of the Rajendra Kumar''s case. Nor it is the contention of the petitioners alleging any legal mala fides against the respondents. It is not their case that the bench mark has been fixed to favour someone or to exclude someone or to defeat the mode of seniority-cum-merit for promotion. In fact the only contention is that the seniority-cum-merit has not been considered by the bank and it is merit-cum-seniority that has been considered.

In the light of the subsequent judgment of the Hon''ble Supreme Court in Rajendra Kumar''s case, while considering the earlier judgment of the Supreme Court in Sivaiah''s case, I find no hesitation to hold that the respondent-bank have rightly considered the promotion of respondent Nos. 2 to 30 on seniority-cum-merit basis. It therefore cannot be said that the promotion of the respondents 2 to 30 are made on merit-cum-seniority basis and not on seniority-cum-merit basis. Such a contention cannot be accepted.

It is to be further seen that during the pendency of these writ petitions, petitioner Nos. 1 and 2 have been promoted on 08.05.2006 and it is submitted at the Bar that even the third petitioner has been promoted about five years earlier.

For all the aforesaid reasons, I am of the considered view that there is no merit in these petitions. Consequently, the petitions are dismissed.

Rule discharged.