Writ Petition No.381 of 1997

23rd June, 2010

Petitioner Counsel: Shri. PRADEEP DESHMUKH,Smt. SMITA DESHPANDE
Respondent Counsel: Shri. ALOK SHARMA,Shri. S. S. BORA,Shri. S. V. NATU

Cases Cited:
Ashok Kumar Yadav Vs. State of Haryana, AIR 1987 SC 454 [Para 3]
Shri. Ashok alias Somanna Gowda Vs. State of Karnataka, AIR 1992 SC 80 [Para 3]
Kisan Sukhdeo Lokhande Vs. Collector, Akola, 2004(4) ALL MR 812=2004(3) Mh.L.J. 742 [Para 3,14]
Muunindra Kumar Vs. Rajiv Govil, AIR 1991 SC 1607 [Para 3]
Dev Dutt Vs. Union of India, 2008(4) ALL MR 438 (S.C.)=[2008] INSC 885 [Para 3]
Abhijit Ghost Dastidar Vs. Union of India, (2008) INSC 1803 [Para 3]
K. A. Nagmani Vs. Indian Airlines, (2009)5 SCC 515 [Para 4,6]
Madan Lal Vs. State of J & K, AIR 1995 SC 1088 [Para 4,6]
State Bank of India and Subsidiary Banks Employees Union Vs. General Manager (Operations) State Bank of India, 2003(2) ALL MR 1061=2003(1) Mh.L.J. 28 [Para 4,6]
Ved Prakash Vs. State of Haryana, (2002)10 SCC 359 [Para 4,12]
K. Samantaray Vs. National Insurance Co. Ltd., 2003(4) ALL MR 1144 (S.C.)=(2004)9 SCC 286 [Para 4,12]
A.P. State Financial Corporation Vs. C. M. Ashok Raju, (1994)5 SCC 359 [Para 4]

JUDGMENT

S. V. GANGAPURWALA, J. :- The petitioners who are the employees of respondent No.2-Jalna Gramin Bank working in Scale I, seek to challenge clause 6 of the circular dated 22/04/1996 issued by the respondent No.2 Bank, laying down criteria for promotions to Scale-II from Scale I post and consequently assail the promotions of respondent Nos.3 to 14 made vide circular dated 01/06/1996.

2. The petitioners contend that the respondent No.2 had published the seniority list of officers working in the said bank vide office order dated 26/03/1996. According to the petitioners, respondent Nos.3 to 14 are juniors to them, as per the said seniority list. That 9 posts of higher rank i.e. Area Managers, Senior Managers and branch managers for Scale II branches were made available for promotion amongst the officers. The said 9 posts are as under :-

1] Area Managers :- 3

2] Senior Managers :- 3

3] Branch Managers :-3 for Scale-II branches as upgraded due to categorisation.

The petitioners have averred that the respondent Nos.3 to 14, though were juniors, were given promotions to the said posts in exclusion of the claim of the present petitioners who are much senior. The petitioner contend that, the circular dated 22/04/1996 which laid down criteria and weightages is illegal, more particularly allowing 30% marks for oral interview.

3. We have heard the respective counsels for the parties at length. Shri. Pradeep Deshmukh, learned counsel for the petitioners, with all vehemence at his command assailed the impugned circular dated 22/04/1996. The submissions of Shri. Pradeep Deshmukh, learned counsel can be culled out as under.

i] The criteria for promotion as per the Regional Rural Banks (Appointments and Promotion of Officers and Other Employees) Rule, 1988 is seniority-Cum-Merit. The circular dated 22/04/1996, fixing weightages for interview and seniority is in-consistent with the Rule, prescribed by the Central Government and such weightage system defeats the very object of seniority-cum-merit. The interview has been given unnecessary importance by providing 30 marks, whereas merit is given 45 marks and seniority is given only 25 marks. The same is violative of Articles 14 & 16 of the Constitution of India. The learned counsel to buttress his said submission relied on the following judgments of the Apex Court:-

a] "Ashok Kumar Yadav & others Vs. The State of Haryana & others, reported in AIR 1987 Supreme Court, 454."

b] "Shri. Ashok alias Somanna Gowda and another Vs. State of Karnataka and others, reported in AIR 1992 Supreme Court 80"

c] and the judgment of this Court in a case of "Kisan Sukhdeo Lokhande Vs. Collector, Akola, reported in 2004(3) Maharashtra Law Journal 742 : [2004(4) ALL MR 812]."

ii] As per law laid down by Apex Court maximum marks only to the extent of 12.5 can be prescribed for interview, and therefore, the provision of 30 marks for interview is arbitrary and contrary to the law laid down by the Apex Court. The learned counsel relied on the judgment of the Apex Court in the case of " Muunindra Kumar & others Vs. Rajiv Govil and others, reported in A.I.R. 1991 Supreme Court 1607" to support this contention.

iii] The Marathwada Gramin Bank which is also Co-operative Bank and governed by the same Rules, prescribes 70 marks to the seniority alone, whereas the respondent No.2 only provide for 25 marks for seniority and as such, the same is discriminatory.

iv] The pick and choose policy has been adopted by the respondent No.2, while selecting the respondent Nos.3 to 14 ignoring the seniority list of the petitioners and their good performance.

v] The respondent No.2 had not communicated any adverse remarks. Even if gradation is given, still the same has to be communicated, in absence of the same it will have to be held that the performance of the petitioners is excellent. For that purpose he relied on judgment of "Dev Dutt Vs. Union of India & others, reported in [2008] INSC 885 : [2008(4) ALL MR 438 (S.C.)]" and Abhijit Ghost Dastidar Vs. Union of India & oth. (2008) INSC 1803.

4. Shri. S. S. Bora, learned counsel for the respondent No.2 submitted that :-

i] The petitioners have taken part in the selection process, after having taken part in the selection process and failed. Thereafter they do not have any locus standi to challenge the promotion of respondent Nos. 3 to 14, and for that purpose relied on the decision of the Apex Court in the case of "K. A. Nagmani Vs. Indian Airlines, reported in (2009)5 Supreme Court Cases 515" so also the judgment in the case of "Madan Lal Vs. State of J & K, reported in AIR 1995 Supreme Court 1088" and the judgment of this Court in the case of "State Bank of India and Subsidiary Banks Employees Union Vs. General Manager (Operations) State Bank of India & others, reported in 2003(1) Mh.L.J. 28 : [2003(2) ALL MR 1061]."

ii] The seniority cum merit does not mean promotion to be made solely on seniority by ignoring the merit criteria and for that purpose relied on the judgment of the Apex Court in the case of "Ved Prakash and others Vs. State of Haryana and others, reported in (2002)10 Supreme Court Cases 359".

iii] In absence of statutory Rules, it is open to the employer to formulate its own promotion policy and parameters of weightage to be given in respect of seniority and merit separately, for the same he relied on the judgment of the Apex Court, in a case of "K. Samantaray V. National Insurance Co., Ltd., reported in (2004)9 Supreme Court Cases 286 : [2003(4) ALL MR 1144 (S.C.)]".

iv] Allocation of 30% marks for interview while selecting the candidates through promotion is not excessive. If the selection is by interview without written examination, then the allocation of even 50% marks for via voce is reasonable. In this case, 30 marks have been given for oral interview and same is reasonable for that purpose he relied on the judgment of the Apex Court in a case of "A.P. State Financial Corporation Vs. C. M. Ashok Raju and others, reported (1994)5 Supreme Court Cases 359."

5. We would first deal with the objection of Shri. S. S. Bora, the learned counsel for the respondent that as the petitioners have taken part in the selection process, it would not be open for them to challenge the said process. It is not disputed that the petitioners have participated in the selection process for promotion to Scale II i.e. Area Managers and that they had failed. Only thereafter they have filed the present petition, challenging the said selection process.

6. The Apex Court in the case of "K. A. Nagmani Vs. Indian Airlines & others" referred supra, wherein Apex Court observed thus :-

"The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn around and question the very same process having failed to qualify for the promotion."

The Apex Court in a case of "Madan lal Vs. State of J.& K & others" referred supra has observed thus :-

"Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful."

This Court also in the case of "State Bank of India & Subsidiary Banks Employees Union Vs. General Manager (Operations), State Bank of India & others." [2003(2) ALL MR 1061] referred supra has observed thus :-

"It is not disputed that the petitioner underwent the selection process and decided to challenge the same when he realised that his name was not found in the selection list displayed by the Bank for the post of Trainee Officer. It is well established by now that after having gone through the selection process, without any protest, the candidate, who did not find his place in the selection list, has no right to challenge the validity of selection process and this is what exactly the petitioner sought to do and, therefore, his challenge has to be repelled."

7. The perusal of the aforesaid judgments would reveal that it is consistent view of the Apex Court and this Court that once a person takes part in the selection process then it would not be open for him to challenge the said process. In the present case also the petitioners had on their own volition participated in the selection process and have challenged the selection process only after having failed in the same.

8. The petition deserves to be dismissed on the aforesaid count itself. However, as we have heard the arguments on all the other aspects of the case, we would also deal with the same.

9. The contention of Shri. Pradeep Deshmukh, learned counsel for the petitioner is that the respondent No.2 could not have framed the policy, vide impugned circular, and the same is not in conformity with the Rules, 1988, as in the promotions based on principle of seniority-cum-merit such weightage of 30% marks to interviews cannot be given. This has given scope for picking and choosing the candidate as per the wish of management/employer. He further contended that when the Rules, 1988 do not provide for such categorisation of marks, the respondent No. 2 did not have power and authority to lay down the said weightages in the circular.

To consider the said argument it would be appropriate to consider the rule which the Government of India in exercise of the powers conferred by Section 29 of the Regional Rural Bank Act, 1976, promulgated the Rules for facilitating appointment and promotion of officers and the said Rules were called as Regional Rural Banks (Appointment and promotion of officers and other employees) Rules, 1988. With regard to the Area Managers or Senior Managers. The relevant Rules provide thus :-

"Area Managers or Senior Managers :-

(a) Source of recruitment :-

Hundred per cent by promotion from amongst confirmed officers working in the bank. Promotions will be on the basis of seniority-cum-merit. If suitable Officers are not available internally, these posts could be filled in by taking temporarily officers of the sponsor Banks and other banks or organisations on deputation.

(b) Qualification and eligibility :-

i) A Graduate of recognised University or any equivalent qualifications recognised as such by Government of India, preference being given to Agriculture or Commerce or Economics Graduates.

ii) Eight years services as an Officer in the regional rural bank concerned, provided that the Board may, with the prior approval of National Bank, relax the period of service by a period not exceeding two years if suitable candidates of requisite experience are not available.

Note :- The post of Area Managers and Senior Managers will be equivalent in rank and will be interchangeable.

(C) Interview and assessment of performance reports for the preceding three years period as officer for promotion."

10. On bare perusal of the Rules, it is manifest that the source of recruitment to the said post of Area Manager is by promotion alone, and the promotion is on the basis of seniority cum merit. The mode of selection is also specified i.e. interview and assessment of performance reports for preceding three years.

11. The said Rules do not provide details of weightage to be given for interview, the assessment of performance reports for preceding three years and for seniority. In the light of the fact that the Rules are silent regarding the weightage to be given for seniority, performance and interview, the employer vide circular dated 22/02/1996 supplemented the same and laid down the weightage for seniority, merit and the interview. For ready reference the Circular dated 22/02/1996 is reproduced below :-

"You are aware that our Bank has completed 13 years of its existence and the volume of business of the bank is increasing day by day. The total business of the bank in first of inception was Rs. 84 lakhs. It has now attained the level of 92 Crore as at 31st March, 1996. The number of branches have also been increased from 22 to 53. In order to cope with additional responsibilities emerging out of increased business and also to groom the officers for taking the higher assignments in future, it is felt necessary to promote the officers from Scale-I to Scale-II. In view of this, we are pleased to inform you that bank has decided to undertake promotion process for promoting 9 officers from Scale-I to Scale-II.

The details of related aspects and modalities of promotion are given as under. These are worked out as per the directives, the instructions of NABARD, Govt. of India and State Govt. received from time to time and also the Guidelines received from Sponsor Bank.

1) Number of posts :- 9 as per following details.

a) Area Managers - 3

b) Senior Managers 3

c) Branch Managers 3 - For Scale-II branches as upgraded due to categorisation.

2) Waiting list :- 3

Three officers, in addition to above will also be selected but they will be on waiting list. The waiting list will be valid for a period of one year only from the date of declaration of list. It will automatically cease to be valid after one year and no other communication will be issued in this behalf.

3) Eligibility :-

Eight years service as on 31/03/1996 as an Officer in Scale-I in our Bank. The service will be counted from the date of promotion as mentioned in the Seniority list of the bank. The educational qualification should be minimum graduate of a recognised university.

4) Basis of criteria for promotion :-

The promotions will be on the basis of seniority-cum-merit.

The posts of area Managers and Senior Managers will be equivalent in rank and will be interchangable.

5) Mode of selection :-

Interview and assessment of performance for the proceeding three years period as officer for promotion.

The interviews will be taken by the selection committee constituted for the purpose as per NABARD guide lines.

6) Weightage for Seniority Merit and Interview :- As basis for promotion is Seniority-Cum-merit and the selection criteria is performance and interview the weightage decided for seniority merit and interview will be as under :-

a) Maximum Weightage : 25 marks.

b) Merit in performance : Maximum weightatge : 45 marks.

c) Interview : Maximum weightate : 30 marks.

Total :- 100 Marks

No weightage will be provided for professional qualification or for service in rural area.

7) Disqualification :- Officers who have faced the departmental enquiry and if it is specifically mentioned in the punishment then only the officer will be debarred from the process of promotion for a period as mentioned in the said order.

The officer who has been charge-sheeted or whose departmental inquiry is in process will be eligible for promotion but his result will be kept in abeyance, if selected, till the inquiry is completed.

8) Reservation for SC/ST candidates :-

The reservation of post will be as per NABARD/Govt. Of India guide lines /instructions.

In this regard NABARD has advised as under.

The matter regarding provision or otherwise for SC/ST candidates to the post of Scale-II officers is under consideration of Govt. of India. As per instructions from NABARD it is decided that pending decision from GOI, SC/ST officers who are senior enough in the zone of consideration for promotion so as to be within No. of vacancies for which the select list has to be drawn, would be included in that list provided they are not considered unfit for promotion.

We have to inform further that all the eligible officers will be communicated individually about the date of interview in due course."

12. The Apex Court in case of "K. Samantarya Vs. National Insurance Co. Ltd." [2003(4) ALL MR 1144 (S.C.)] referred supra, wherein Apex Court has held that " in absence of statutory Rules, it is open to the employer to formulate its own promotion policy specifying area, and parameters of weightage to be given. Promotion policy preferring seniority-cum-merit also, depending upon the class of category and nature of posts in hierarchy of administration and requirements of efficiency for such posts is permissible."

The Apex Court in the case of "Ved Prakash and others Vs. State of Haryana & others" dealing with the concept of seniority-cum-merit has observed thus :-

"The expression "seniority-cum-merit" by any stretch of imagination cannot be construed to be equivalent to seniority alone as concluded by the learned Single Judge. Where a promotion is based solely on the basis of the seniority, then there is no question of adjudging the merit of the relevant contesting candidate, and promotion is bound to be given on the basis of the seniority in the feeder cadre. But, when Rule 9 itself provides that the promotion is based on the criterion" Seniority-Cum-merit" it is difficult to comprehend how "merit" will be ignored from consideration."

13. Perusal of the circular will depict that the said circular is in-conformity with the Rules. The circular has specified the marks to be allocated under each head. The Rules, 1988 lay down the criteria i.e. while giving promotions the seniority, merit and interview will have to be considered but are silent regarding weightage of marks to be allocated under each head. The respondent No.2 has allotted the marks under each head after consultation with the unions of the officers. The respondent No.2 vide said circular has not laid down any new criteria but has allocated marks under different heads which are specified in the Rules, 1988. The respondent No.2 has only supplemented and has not supplanted the Rules, 1988. The same is perfectly permissible.

14. The next contention of Shri. Deshmukh that as per the law laid down by the Apex Court, maximum number of marks that can be prescribed for interview cannot exceed to 12.5% is totally unsustainable considering the facts involved herein. Reliance placed by Shri Deshmukh on the judgment of Apex Court in the case of "Ashok Kumar Yadav & others Vs. State of Haryana & others" referred supra is totally mis placed. Perusal of the said judgment clearly lays down that there cannot be any hard and fast rule regarding the precise weight to be given to the via voces against written examination and it has to be left to the experts to determine the same. The Apex Court has observed thus :-

"There can therefore be no doubt that viva voce test performs a very useful function in assessing personal characteristics and traits and in fact tests the man himself and is therefore regarded as an important tool along with the written examination. Now if both written examination and viva voce test are accepted as essential features of proper selection in a given case, the question may arise as to the weight to be attached respectively to them." In the case of admission to College for instance",as observed by Chinnappa Reddy, J. in Liladh's case (AIR 1981 SC 1777)," where the candidate's personality is yet to develop and it is too early to identify the personal qualities for which greater importance may have to be attached in later life, greater weight has perforce to be given to performance in the written examination" and the importance to the viva voce test in such a case would therefore necessarily be minimal. It was for this reason that in Ajay Hasia's case this Court took the view that the allocation of as high a percentage of marks as 33.3% to the viva voce test was "beyond all reasonable proportion and rendered the selection of the candidates arbitrary". But, as pointed out by Chinnappa Reddy, J., " in the case of services to which recruitment has necessarily to be made from persons of mature personality, interview test may be the only way subject to basic and essential academic and professional requirements being satisfied". There may also be services" to which recruitment is made from younger candidates whose personalities are on the threshold of development and who show signs of great promise" and in case of such services where sound selection must combine academic ability with personality promise, some weight has to be given to the viva voce test. There cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, the age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other facts. It is essentially a matter for determination by experts. The Court does not possess the necessary equipment and it would not be right for the Court to pronounce upon it, unles to use the works of Chinnappa Reddy, J. in Liladhar's case" exaggerated weight has been given with proven or obvious oblique motives."

So also reliance on the judgment of this Court in the case of "Kisan s/o Sukhdeo Lokhande Vs. Collector, Akola & others" [2004(4) ALL MR 812] referred supra is of no assistance because in the said case, the selection process was based on 100% viva voce tests without any written test. In the present case that is not the factual position. The Apex Court in a case of "A.P. State Financial Corporation Vs. C.M. Ashok Raju & others" has held that in case of selection by interview test without written examination, allocation of 50% marks for viva voce tests is not excessive. In the present case, also there was no written test, as such fixing 30% marks for oral interview cannot be said to be excessive or irrational.

15. Shri. Deshmukh has stated that it was to favour the respondents, the impugned circular was introduced and the authorities indulged in pick and choose policy. Such an argument cannot be entertained for the simple reason that, in the petition no specific allegations of malafides are made against any individual. Unless and until specific acts of malafides are detailed the said allegations cannot be considered.

16. The next contention of the petitioners is that the respondent No.2 at no material point of time had communicated adverse remarks and in absence of the same performance of the petitioner ought to be held as excellent. This arguments would have sustained if it would have been brought on record that, the petitioners have not been considered for promotion on the basis of their performance in last three years. Moreover, it has come on record that the petitioner Nos.1 & 2 had to face departmental inquiries and were also punished. In such circumstances, the petitioners could not make any grievance in this regard.

17. In the result, writ petition is dismissed. Rule is discharged. However, there shall be no order as to cost.

Petition dismissed.