SHRIRAM TOMAR AND ANOTHER ETC. versus PRAVEEN KUMAR JAGGI AND OTHERS on 9 April 2019

590

SUPREME COURT REPORTS

[2019] 6 S.C.R.

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SHRIRAM TOMAR AND ANOTHER ETC.

v.

PRAVEEN KUMAR JAGGI AND OTHERS

(Civil Appeal Nos. 3603-07 of 2019)

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APRIL 09, 2019

[L.NAGESWARA RAO AND M.R. SHAH, JJ.]

Service Law: Promotion – Post of Junior Management ScaleII – Criteria for promotion – Seniority-cum-merit – Mode of selectionbased on written test, interview and assessment of performanceCappraisal reports for preceding five years as officer in Scale I –The candidates were to appear in written test comprising of twoparts – As per the Rules, those candidates who secured minimum40% of marks in each part were to be called for interview – Asregards interview and performance appraisal reports for precedingDfive years service, under the rules, no minimum qualifying markswere provided – However, Selection Committee fixed bench mark ofminimum 12 marks to be secured in the interview as well asperformance appraisal (each) and decided that only thosecandidates who secured in all 24 marks in minimum in the interviewas well as the performance appraisal would be considered forEpromotion – Accordingly, based on this criteria promotion orderwas made – Writ petitioners challenged the same on the ground thatthe three successful candidates were junior to them and since writpetitioners obtained more than 40% marks in the written test andwere senior, they ought to have been promoted to the post of ScaleFII – The promotions were also challenged on the ground that furtherfixing the qualifying marks to be obtained in the interview and theperformance appraisal reports, viz., 12 minimum marks each to beobtained in the interview and the performance appraisal reportsand fixing such a benchmark would violate the principle of seniority-cum-merit – The Single Judge of High Court held that fixing theGqualifying marks/benchmark to obtain minimum 12 marks in theinterview and the performance appraisal was not permissible andit defeated the principle of seniority-cum-merit and, therefore,directed to prepare a fresh promotion list by prescribing the minimumnecessary cut off merit marks out of 100 so that the rule of seniority-Hcum-merit could be made applicable – The Division Bench, not only dismissed the appeals, but also set aside the directions issued bythe Single Judge and directed the establishment to conduct freshexercise for promotion – Hence the instant appeal – Held: TheSingle Judge as well as the Division Bench erred in holding thatfixing the qualifying marks to be obtained in the interview and theperformance appraisal reports would violate the principle ofseniority-cum-merit – As the promotion to the post of JuniorManagement Scale II is to be made on the basis of seniority-cum-merit, the only requirement is that after it is found that the candidateshave possessed the minimum necessary merit, namely, minimum 40%qualifying marks in the written test and minimum 12 marks each outof 20 marks each in interview and the performance appraisal reportsrespectively, the candidates would be promoted in the order ofseniority, irrespective of anyone among them having obtained moremarks – In view of this, orders of Single Judge and Division Benchof High Court are quashed and respondent-authority is directed toprepare a fresh select list for promotion accordingly – RegionalRural Banks (Appointment and Promotion of Officers and otherEmployees) Rules, 1998.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: The Single Judge as well as the Division Bencherred in holding that further fixing the qualifying marks to beobtained in the interview and the performance appraisal reports,viz., 12 minimum marks each to be obtained in interview and theperformance appraisal reports and fixing such a benchmark wouldviolate the principle of seniority-cum-merit. Further fixing thequalifying marks in the written test, performance appraisal reportsand the interview has not violated the principle of seniority-cum-merit. It is further held that prescribing minimum qualifying marksto ascertain the minimum merit necessary for discharging thefunctions of the higher post is not violative of the concept ofpromotion by seniority-cum-merit. The judgments and orderspassed by the single judge of High Court and Division Bench ofHigh Court are set aside. The authority is directed to prepare afresh select list for promotion and to consider the case of thosecandidates who crossed the benchmark of having obtainedminimum 40% qualifying marks in the written test and havingobtained minimum 12 marks each out of 20 marks each forinterview and performance appraisal reports respectively and AB

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Athose candidates be promoted in the order of seniority,irrespective of anyone among them having obtained more marks.[Paras 12, 13][600-B-G]

Chairman, Rushikulya Gramya Bank v. BisawamberPatro (2013) 4 SCC 376 : [2013] 4 SCR 239; RajendraBKumar Srivastava v. Samyut Kshetriya Gramin Bank(2010) 1 SCC 335 : [2009] 15 SCR 936 – relied on.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3603-3607 of 2019

From the Judgment and Order dated 24.09.2008 of the High CourtDof Judicature at Jabalpur in Writ Appeal Nos. 1508, 1509, 1510, 1511and 1535 of 2007.

R. S. Hegde, Farhat Jahan Rehmani, Rajeev Singh, Advs. for theAppellants.EKunal Verma, Mrs. Yugandhara Pawar Jha, Piyush Bhardwaj,M. C. Dhingra, Vishal Prasad, K. P. Prasad, Ritika Sethi, Satish Vig,Shiv Sagar Tiwari, Ms. Babita Jha, S. K. Dey, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.F

2. As common question of law and facts arise in this group ofappeals, and as such they arise out of the impugned common judgmentand order passed by the High Court, all these appeals are being decidedand disposed of by this common judgment and order.

2.1 All these appeals arise out of the impugned common judgmentGpassed by the Division Bench of the High Court of Judicature at Jabalpur(Madhya Pradesh) passed in Writ Appeal Nos. 1510/2007, 1509/2007,1508/2007, 1511/2007 and 1535/2007, by which the Division Bench ofthe High Court dismissed the said appeals, however, while dismissingthe said appeals, modified the order passed by the learned Single JudgeHand directed that instead of preparing a fresh select list, the establishment would conduct the fresh exercise for promotion, and further directedthat the establishment would be obliged to prescribe minimum necessarycut off merit marks out of 100 so that the rule of seniority-cum-merit ismade applicable.

3. The facts leading to the present appeals in nutshell are as under:

The dispute is with respect to promotion to the post of JuniorManagement Scale II in the Mahakoshal Kshetriya Bank. That inexercise of powers conferred under Section 29 of the Regional RuralBanks Act, 1976, the Central Government, in consultation with NationalBank and the Sponsor Bank, i.e., the UCO Bank, formulated the Rulescalled Regional Rural Banks (Appointment and Promotion of Officersand other Employees) Rules, 1998 (hereinafter referred to as the ‘Rules’).That the said Rules were notified in the gazette on 29.07.1998. ThirdSchedule of the aforesaid Rules, inter alia, provides for appointment oftwo different categories of officers. It also provides for eligibility as wellas mode of selection in respect thereto. As regards Scale II officers, itwas specifically provided that the source of appointment shall be 100%by promotion and the criterion for promotion shall be on the basis ofseniority-cum-merit. That mode of selection was that the candidateshall be selected by a committee on the basis of written test, interviewand the assessment of ‘performance appraisal reports’ for the precedingfive years as officer in Scale I/Field Supervisor. The division of markswas as follows:

3.1 As regards written test, it provided that the candidate shall berequired to appear for written test comprising of two parts, viz., Part ‘A’and Part ‘B’. The 60 marks allotted to written test were further dividedas :

Part ‘A’30 marks Part ‘B’30 marks

3.2 As per the aforesaid rules, a list of only those candidates whosecure minimum 40% of marks in each part (Part ‘A’ & Part ‘B’) shall A

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Abe prepared and shall be called for interview. As regards interview and‘performance appraisal reports’ for preceding five years’ service, underthe rules, no minimum qualifying marks were provided.

3.3 The respondent-bank for the purpose of promotion from ScaleI to Scale II issued a memo dated 30.03.2004 and informed all the BranchBManagers and all the departments of the Head Office to submit‘performance appraisal reports’ of preceding five years’ of Scale Iofficers. The bank also issued guidelines in consonance with the Rules,vide guidelines dated 12.04.2004.

3.4 For promotion of Scale I officers to the available 16 posts ofScale II, the Bank called 64 candidates/officers in the ratio of 1:4. TheCwritten test was conducted on 16.04.2004 and 32 candidates out of 64were declared qualified in the written test, as it was found that theysecured more than 40% marks in the written examination. Thatthereafter, the appellants along with other eligible candidates (32 innumbers) appeared in the interview conducted on 18/19.09.2004. ThatDvide memo dated 09.10.2004, the bank published the results of successfulofficers/candidates shown to have been promoted to Scale II posts. Thatthe appellants herein who were also placed in the seniority list came tobe promoted, by virtue of their seniority, having secured more thanminimum marks in the written test and having passed the interview andperformance appraisals. However, it appears that three persons, namely,ESunil Kumar Gupta, Gopal Singh Raj and Rajesh Kumar Jain (respondentsherein), though much junior in the seniority list of Scale I officers, werealso included in the list of promoted officers, issued vide memo dated9.10.2004 and three senior persons were ignored, namely, Anil KumarSingh, K.C. Soni and N.K. Sharma. Therefore, the aforesaid threeFpersons, namely, Anil Kumar Singh, K.C. Soni and N.K. Sharma andone another, namely, Praveen K. Jaggi filed Writ Petition Nos. 12127/2004, 12125/2004, 12126/2004 and 11005/2004 challenging the order dated09.10.2004 whereby the aforesaid three persons, namely, Sunil KumarGupta, Gopal Singh Raj and Rajesh Kumar Jain were placed below AnilKumar Singh, K.C. Soni and N.K. Sharma in the seniority list. BeforeGthe learned single Judge, it was the case on behalf of the original writpetitioners that promotions to the post of Scale II were solely on thebasis of seniority-cum-merit and the rules provide that only thosecandidates who secure minimum 40% marks in the written test shall becalled for interview and there being no minimum qualifying marks providedHso far as marks obtained in interview and performance appraisal reports and therefore the original writ petitioners being senior and they obtainedmore than 40% marks in the written test, they ought to have beenpromoted to the post of Scale II.

3.5 However, it was the case on behalf of the bank that as perthe administrative instructions, a conscious decision was taken by theSelection Committee fixing the bench mark of minimum 12 marks to besecured in the interview as well as performance appraisals (each) andonly those candidates who secured in all 24 marks in minimum in theinterview as well as the performance appraisals were required to beconsidered for promotion and accordingly those candidates who secured24 marks minimum in the interview as well as the performance appraisalswere promoted.

4. The learned Single Judge of the High Court did not accept thesame and observed that such a procedure and insisting securing 24 marksminimum in the interview and the performance appraisals was notprovided under the rules and therefore such a procedure was notpermissible by administrative instructions. The learned Single Judgealso observed that the aforesaid criteria would violate the principle ofseniority-cum-merit and by such a criteria the principle of merit-cum-seniority is applied, which is contrary to the rules. Therefore, whileallowing the aforesaid writ petitions and quashing and setting aside thelist dated 9.10.2004, the learned Single Judge directed to prepare a freshselection list by prescribing the minimum necessary cut off marks out of100 so that the rule of seniority-cum-merit should be made applicableand thereafter may proceed to prepare a fresh selection list and afterprescribing the necessary minimum/cut off marks the persons who securethe minimum merit marks on the basis of their seniority shall be re-arranged and accordingly a fresh order of promotion shall be passed bythe bank.

5. Feeling aggrieved and dissatisfied with the common impugnedjudgment and order passed by the learned Single Judge of the HighCourt, the bank as well as the appellants herein – original respondentsbefore the learned single Judge preferred writ appeals before the DivisionBench of the High Court. By common impugned judgment and order,the Division Bench has not only dismissed the appeals, but while dismissingthe appeals has set aside the direction issued by the learned Single Judgeto prepare a fresh merit list and has further directed that instead ofpreparing a fresh selection list by prescribing the minimum necessarycut off merit marks out of 100, the bank shall conduct the fresh exercise A

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Afor promotion. The Division Bench also observed that the bank wouldbe obliged to prescribe minimum necessary cut off merit marks out of100 so that the rule of seniority-cum-merit is made applicable.

6. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the Division Bench of the High CourtBdismissing the appeals and further directing to conduct the fresh exercisefor promotion, the original appellants before the Division Bench of theHigh Court (those who were promoted pursuant to the list/order dated09.10.2004) have preferred the present appeals.

7. Shri R.S. Hegde, learned advocate appearing on behalf of theCappellants has vehemently submitted that in the facts and circumstancesof the case, the Division Bench has committed a grave error of law andfacts while quashing the entire selection test/list and ordering freshexercise of promotion.

7.1 It is vehemently submitted by the learned counsel appearingDon behalf of the appellants that in an appeal against the judgment andorder passed by the learned Single Judge ordering fresh exercise ofpromotion and when it was nobody’s case before the Division Benchthat the entire selection test has been vitiated and even that was not theobservation made by the learned Single Judge, the Division Bench couldnot have/ought not to have set aside the entire selection test and/or notEto have ordered the fresh exercise of promotion.

7.2 It is further submitted by the learned counsel appearing onbehalf of the appellants that even otherwise both, the learned SingleJudge as well as the Division Bench have materially erred in observingand holding that by prescribing minimum 12 marks each to obtain in theForal interview as well as performance appraisal reports, the principle ofseniority-cum-merit has been given go by.

7.3 Relying upon the decision of this Court in the case ofChairman, Rushikulya Gramya Bank v. Bisawamber Patro reportedin (2013) 4 SCC 376, it is submitted by the learned counsel appearingGon behalf of the appellants that prescription of benchmark merit criterionbased on aggregate performance in written test, interview andperformance appraisal report, besides criteria fixed by rules for grant ofpromotion on seniority-cum-merit basis is permissible.

7.4 It is further submitted by the learned counsel appearing onHbehalf of the appellants that in the case of Rajendra Kumar Srivastava

v. Samyut Kshetriya Gramin Bank reported in (2010) 1 SCC 335, itis held by this Court that prescribing minimum qualifying marks toascertain the minimum merit necessary for discharging the functions ofthe higher post, is not violative of the concept of promotion by seniority-cum-merit.

7.5 Making the above submissions and relying upon the abovetwo decisions of this Court, it is vehemently submitted by the learnedcounsel appearing on behalf of the appellants that in the present caseboth, the learned Single Judge as well as the Division Bench erred inholding that prescribing the benchmark to obtain 12 marks each in theinterview and performance appraisal reports shall be defeating theprinciple of seniority-cum-merit and as such the same is contrary to thelaw laid down by this Court in the aforesaid two decisions.

7.6 It is further submitted by the learned counsel appearing onbehalf of the appellants that even otherwise it is required to be notedthat out of 16 candidates promoted, 13 candidates were as such abovethe original writ petitioners in the seniority list and the objection was onlywith respect to three persons who were promoted and who were juniorto the original writ petitioners. It is submitted that therefore at the mostthe learned Single Judge could have set aside the promotion with respectto only those three promotes who were junior to the original writpetitioners. However, learned advocate appearing on behalf of theappellants herein has fairly conceded that after all those candidates whocrossed the benchmark even in interview and the performance appraisalreports, thereafter the promotions are to be made on the basis of seniority-cum-merit.

8. Learned advocate(s) appearing on behalf of the original writpetitioners has supported the order passed by the learned Single Judgeand has/have submitted that as rightly observed by the learned SingleJudge and to that extent the learned Division Bench that by prescribingthe benchmark of obtaining 12 marks each in interview and performanceappraisal reports, the principal of seniority-cum-merit has been given goby.

8.1 It is submitted by the learned advocate(s) on behalf of theoriginal writ petitioners that as such in the advertisement, the only eligibilitycriteria was that a candidate shall have to obtain minimum 40% marks inthe written test and no minimum marks were prescribed for the interviewand the performance appraisal reports.

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A8.2 Relying upon the decision of this Court in the case ofB.V.Sivaiah v. K. Addanki Babu reported in (1998) 6 SCC 720, andanother decision of this Court in the case of Sarva U.P.Gramin Bank v.Manoj Kumar Chak reported in (2013) 6 SCC 287, it is prayed todismiss the present appeals.

B9. We have heard learned counsel for the respective parties atlength.

At the outset, it is required to be noted that the promotion to thepost of Junior Management Scale II is governed by the principal ofseniority-cum-merit. It is true that as per the rule and as per the eligibilityCcriteria mentioned in the rule, the selection shall be on the basis ofperformance in the written test, interview and performance appraisalreports for preceding five years. As per the rules, 60 marks are allottedfor written test, 20 marks for interview and 20 marks for performanceappraisal reports. The rule further provides that a candidate shall berequired to appear in the written test comprising of two parts, viz, PartD‘A’ and Part ‘B’. 60 marks allotted for written test are further dividedas under:

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EThe rule further provides that a list of only those candidates whosecure minimum 40% marks in each part shall be prepared and suchcandidates shall be called for interview. It is true that the rule do notprovide any minimum qualifying marks for interview as well asperformance appraisal. However, at the same time, the authority/Selection Committee took a conscious decision to fix the benchmark ofFhaving 12 marks each out of 20 marks each in interview as well asperformance appraisal reports. Both the learned Single Judge as wellas the Division Bench found fault with the same and observed and heldthat further fixing the qualifying marks/benchmark to obtain minimum12 marks in the interview and the performance appraisal was notGpermissible and that it would defeat the principle of seniority-cum-merit.The learned Single Judge therefore directed to prepare the fresh promotionlist by prescribing the minimum necessary cut off merit marks out of 100so that the rule of seniority-cum-merit could be made applicable.

10. When the aforesaid order passed by the learned Single JudgeHwas challenged before the Division Bench, the Division Bench, by the impugned judgment and order, not only dismissed the appeals, but alsoset aside the directions issued by the learned Single Judge to prepare afresh select list by prescribing the minimum necessary cut off meritmarks out of 100 and directed the establishment to conduct the freshexercise for promotion, meaning thereby, the Division Bench set asidethe entire select list. In the absence of any finding by the learned SingleJudge that the select list was vitiated on account of any irregularity, theDivision Bench was not justified in setting aside the entire select list andordering fresh exercise for promotion.

11. Now so far as the finding recorded by the learned Single Judgeand the Division Bench that further fixing the qualifying marks/benchmark of obtaining minimum 12 marks each in the interview andthe performance appraisal reports is not permissible and it would defeatthe principle of seniority-cum-merit is concerned, as observed and heldby this Court in the case of Bisawamber Patro (supra), the same ispermissible. This Court was considering a similar situation and the similarrules governing promotions from Junior Management Scale I to MiddleManagement Scale II. In the case before this Court, the rule was similarto the rule in the present case. In the rule before this Court, also therewas no minimum qualifying marks for the interview provided. However,the bank in addition to the requirement of 40% qualifying marks in thewritten test further fixed the qualifying marks of 60% for generalcandidates and 55% marks for SC/ST candidates on the aggregate markscomprising written test, performance appraisal reports and interview.That thereafter the names of all the candidates who got 60% or above inthe aggregate were put in the list for promotion strictly as per theirseniority. All candidates were promoted in the order of seniority,irrespective of anyone among them having got marks in excess of 60%in the aggregate. The candidates unsuccessful in getting promotionchallenged the select list on the similar grounds on which the select list inthe present case was challenged. The High Court allowed the writpetition holding that prescription of the benchmark of 60% marks in theaggregate was in violation of the promotion policy and the rules governingthe field. Consequently, the High Court allowed the writ petition anddirected the bank to make fresh selection in accordance with the rules.Reversing the order passed by the High Court, and even after consideringthe decision of this Court in the case of B.V.Sivaiah (supra) (the judgmentwhich has been relied upon by the High Court), this Court observed thatthe procedure adopted by the bank to further fixing the qualifying marks AB

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Ain the written test, performance appraisal reports and the interview hasnot violated the principle of seniority-cum-merit. While observing so,this Court took into consideration the observations made by this Court inpara 13 of another decision of this Court in the case of Rajendra KumarSrivastava (supra).

B12. Applying the law laid down by this Court in the aforesaid twodecisions to the facts of the case on hand, we are of the opinion thatboth, the learned Single Judge as well as the Division Bench erred inholding that further fixing the qualifying marks to be obtained in theinterview and the performance appraisal reports, viz., 12 minimum markseach to be obtained in interview and the performance appraisal reportsCand fixing such a benchmark would violate the principle of seniority-cum-merit. As the promotion to the post of Junior Management Scale IIshall be made on the basis of seniority-cum-merit, the only requirementwould be that after it is found that the candidates have possessed theminimum necessary merit, namely, minimum 40% qualifying marks inDthe written test and minimum 12 marks each out of 20 marks each ininterview and the performance appraisal reports respectively, thereafterthe candidates are required to be promoted in the order of seniority,irrespective of anyone among them having obtained more marks.

13. In view of the above and for the reasons stated above, theEpresent appeals are allowed. The judgment and order passed by thelearned Single Judge of the High Court as well as the impugned judgmentand order passed by the Division Bench are hereby quashed and setaside. It is directed that the respondent-authority shall prepare a freshselect list for promotion to the post of Junior Management Scale II andto consider the case of those candidates who crossed the benchmark ofFhaving obtained minimum 40% qualifying marks in the written test andhaving obtained minimum 12 marks each out of 20 marks each forinterview and performance appraisal reports respectively and thosecandidates be promoted in the order of seniority, irrespective of anyoneamong them having obtained more marks.G14. The present appeals are allowed to the aforesaid extent. Noorder as to costs.

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Devika Gujral

Appeals allowed.