REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3603­3607  OF 2019 (Arising out of SLP(C) Nos.7010­7014/2009)

Shriram Tomar and another Etc. …Appellants

Versus

Praveen Kumar Jaggi and others …Respondents

WITH

CIVIL APPEAL NO. 3608  OF 2019 (Arising out of SLP(C) No.6075/2009)

Dev Narain Shukla and others ..Appellants

Versus

Praveen Kumar Jaggi and others ..Respondents

J U D G M E N T

M.R. SHAH, J.

Leave granted.

2. As common  question of law and facts arise in this

group of appeals, and as such they arise out of the impugned

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common judgment and order passed by the High Court, all these

appeals are being decided and disposed of by this common

judgment and order.

2.1 All these appeals arise out of the impugned common

judgment  passed  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 of the  High Court

dismissed the said appeals, however, while dismissing the said

appeals, modified the order passed by the learned Single Judge

and  directed that instead  of preparing  a fresh  select list, the

establishment would conduct   the fresh exercise for promotion,

and further directed that the establishment would be obliged to

prescribe minimum necessary cut off merit marks out of 100 so

that the rule of seniority­cum­merit is made 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

Junior Management Scale II in the Mahakoshal Kshetriya Bank.

That in  exercise  of  powers conferred  under  Section  29  of the

Regional  Rural  Banks  Act, 1976, the  Central  Government, in

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consultation with National Bank and the Sponsor Bank, i.e., the

UCO Bank, formulated the Rules called Regional  Rural  Banks

(Appointment  and Promotion of  Officers  and other  Employees)

Rules, 1998 (hereinafter referred to as the ‘Rules’).  That the said

Rules were notified in the gazette on 29.07.1998.  Third Schedule

of the aforesaid Rules, inter alia, provides for appointment of two

different categories of  officers. It  also provides  for  eligibility  as

well as mode of selection in respect thereto.  As regards Scale II

officers, it was specifically provided that the source of

appointment shall  be 100% by promotion and the criterion for

promotion shall  be  on the  basis  of  seniority­cum­merit.  That

mode of selection was that the candidate shall be selected by a

committee on the basis of written test, interview and the

assessment of  ‘performance appraisal reports’ for the preceding

five years as officer in Scale I/Field Supervisor.   The division of

marks was as follows:

Written Test 60 marks

Interview 20 marks

Performance appraisal           20 marks

Total                                              100 marks

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3.1 As regards written test, it provided that the candidate

shall  be  required to  appear  for  written  test  comprising  of two

parts, viz., Part ‘A’ and Part ‘B’.  The 60 marks allotted to written

test were further divided as :

Part ‘A’ 30 marks

Part ‘B’ 30 marks

3.2 As per the aforesaid rules, a list of only those

candidates who secure minimum 40% of marks in each part (Part

‘A’ & Part ‘B’) shall be prepared and shall be called for interview.

As regards interview and ‘performance appraisal reports’ for

preceding five years’ service, under the rules, no minimum

qualifying marks were provided.

3.3 The respondent­bank for the purpose of promotion

from Scale  I  to Scale  II issued a memo dated 30.03.2004 and

informed all the Branch Managers and all the departments of the

Head Office to submit ‘performance appraisal reports’ of

preceding five years’  of  Scale I  officers.  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 of Scale II, the Bank called 64 candidates/officers in the

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ratio of 1:4.  The written test was conducted on 16.04.2004 and

32 candidates out of 64 were declared qualified  in the written

test, as it was found that they secured more than 40% marks in

the written examination.   That thereafter, the appellants along

with other eligible candidates (32 in numbers) appeared in the

interview conducted on 18/19.09.2004.   That vide memo dated

09.10.2004, the bank published the results of successful

officers/candidates shown to have been promoted to Scale II

posts.   That the appellants herein who were also placed in the

seniority list came to be promoted, by virtue of their seniority,

having secured more than minimum marks in the written test

and  having passed the interview  and  performance  appraisals.

However, it  appears that three  persons,  namely,  Sunil  Kumar

Gupta,  Gopal  Singh Raj  and Rajesh Kumar Jain  (respondents

herein), though  much junior in the seniority list of Scale I

officers, were also included in the list of promoted officers, issued

vide memo dated 9.10.2004 and three senior persons were

ignored, namely, Anil Kumar Singh, K.C. Soni and N.K. Sharma.

Therefore, the aforesaid three persons, namely, Anil Kumar

Singh,  K.C.  Soni  and  N.K.  Sharma and  one  another,  namely,

Praveen K. Jaggi filed Writ Petition Nos. 12127/2004,

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12125/2004, 12126/2004 and 11005/2004 challenging the

order dated 09.10.2004  whereby the aforesaid three persons,

namely, Sunil Kumar Gupta, Gopal Singh Raj and Rajesh Kumar

Jain were placed below Anil  Kumar Singh, K.C. Soni and N.K.

Sharma in the seniority list.   Before the learned single Judge, it

was the case on behalf of the original writ petitioners that

promotions  to  the  post  of  Scale II  were solely  on the  basis  of

seniority­cum­merit and the rules provide that only those

candidates who secure minimum 40% marks in the written test

shall be called for interview and there being no minimum

qualifying marks provided so far as marks obtained in interview

and performance appraisal reports and therefore the original writ

petitioners being senior and they obtained more than 40% marks

in the written test, they ought to have been promoted to the post

of Scale II.

3.5 However, it was the case on behalf of the bank that as

per the administrative instructions, a conscious decision  was

taken by the Selection Committee fixing the bench  mark of

minimum 12 marks to be secured  in  the  interview as well  as

performance  appraisals (each) and  only those candidates  who

secured in all 24 marks in minimum in the interview as well as

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the performance appraisals were required to be considered  for

promotion and accordingly those candidates  who   secured  24

marks  minimum  in the interview  as  well as the  performance

appraisals were promoted.

4. The  learned Single Judge of the High Court  did not

accept the same and observed that such a procedure and

insisting securing 24 marks minimum in the interview and the

performance appraisals  was not  provided under  the  rules  and

therefore such a procedure was not permissible by administrative

instructions.   The learned Single Judge also observed that the

aforesaid criteria  would violate the  principle of seniority­cum­

merit and by such a criteria the principle of merit­cum­seniority

is applied, which is contrary to the rules.   Therefore, while

allowing the aforesaid writ petitions   and quashing and setting

aside the list dated 9.10.2004, the learned Single Judge directed

to prepare a fresh selection list by prescribing the  minimum

necessary cut off marks out of 100 so that the rule of seniority­

cum­merit should be made applicable and thereafter may

proceed to prepare a fresh selection list and after prescribing the

necessary minimum/cut off marks the persons who secure the

minimum merit marks on the basis of their seniority shall be re­

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arranged  and  accordingly  a fresh  order  of  promotion  shall  be

passed by the bank.

5. Feeling  aggrieved  and  dissatisfied  with the common

impugned judgment and order passed by the learned Single

Judge  of the  High  Court, the  bank as  well as the  appellants

herein – original respondents  before the learned single Judge

preferred  writ appeals before the  Division  Bench of the  High

Court.  By common impugned judgment and order, the Division

Bench has not only dismissed the appeals, but while dismissing

the  appeals  has  set  aside the  direction  issued by the learned

Single Judge to prepare a fresh  merit list and has further

directed that instead of preparing a fresh selection list by

prescribing the minimum necessary cut off merit marks out of

100, the bank shall conduct the fresh exercise for promotion. The

Division Bench also observed that the bank would be obliged to

prescribe minimum necessary cut off merit marks out of 100 so

that the rule of seniority­cum­merit is made applicable.

6. Feeling aggrieved and dissatisfied with the impugned

common judgment and order passed by the Division Bench of the

High Court dismissing the appeals and further directing to

conduct the fresh exercise for promotion, the original appellants

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before the  Division Bench of the  High Court (those  who were

promoted pursuant to the list/order dated 09.10.2004) have

preferred the present appeals.   

7. Shri R.S. Hegde, learned advocate appearing on behalf

of the appellants has vehemently submitted that in the facts and

circumstances of the case, the Division Bench has committed a

grave error of law and facts while quashing the entire selection

test/list and ordering fresh exercise of promotion.

7.1 It is vehemently submitted by the learned counsel

appearing on behalf of the appellants that in an appeal against

the judgment and order passed by the learned  Single Judge

ordering fresh exercise of promotion and when it was nobody’s

case before the Division Bench that the entire selection test has

been vitiated and even that was not the observation made by the

learned Single Judge, the Division Bench could not have/ought

not to have set aside the entire selection test and/or not to have

ordered the fresh exercise of promotion.

7.2 It is further submitted by the learned counsel

appearing on behalf of the appellants that even otherwise both,

the learned  Single Judge  as  well as the  Division  Bench have

materially erred in observing  and  holding that by  prescribing

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minimum 12 marks each to obtain in the oral interview as well as

performance appraisal reports, the principle of seniority­cum­

merit has been given go by.

7.3 Relying upon the decision of this Court in the case of

Chairman, Rushikulya Gramya Bank v. Bisawamber Patro

reported in (2013)  4  SCC 376, it is submitted  by the learned

counsel appearing on behalf of the appellants that prescription of

benchmark merit criterion based  on aggregate  performance in

written test, interview and performance appraisal report, besides

criteria fixed by rules for grant of promotion on seniority­cum­

merit basis is permissible.

7.4 It is further submitted by the learned counsel

appearing on behalf of the appellants that in the case of Rajendra

Kumar Srivastava v. Samyut Kshetriya Gramin Bank reported in

(2010) 1 SCC 335, it is held by this Court that prescribing

minimum qualifying marks to ascertain the minimum  merit

necessary for discharging the functions of the higher post, is not

violative of the concept of promotion by seniority­cum­merit.

7.5 Making the above submissions and relying upon the

above two decisions of this Court, it is vehemently submitted by

the learned counsel appearing on behalf of the appellants that in

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the present case both, the learned Single Judge as well as the

Division Bench erred in holding that prescribing the benchmark

to obtain 12 marks each in the interview and performance

appraisal reports shall be  defeating the  principle of seniority­

cum­merit and as such the same is contrary to the law laid down

by this Court in the aforesaid two decisions.

7.6 It is further submitted by the learned counsel

appearing on behalf of the appellants that even otherwise  it  is

required to  be  noted that  out  of  16  candidates  promoted,  13

candidates were as such above the original writ petitioners in the

seniority list  and the objection was only  with respect to  three

persons who were promoted and who were junior to the original

writ petitioners.   It is submitted that therefore at the most the

learned Single Judge could have set  aside  the promotion with

respect to only those three  promotes  who  were junior to the

original writ petitioners.  However, learned advocate appearing on

behalf of the appellants herein has fairly conceded that after all

those candidates who crossed the benchmark even in interview

and the performance appraisal reports, thereafter the promotions

are to be made on the basis of seniority­cum­merit.

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8. Learned advocate(s) appearing on behalf of the original

writ petitioners has supported the order passed by the learned

Single Judge and has/have submitted that   as rightly observed

by the learned Single Judge and to that extent the learned

Division Bench that by prescribing the benchmark of obtaining

12 marks each in interview and performance appraisal reports,

the principal of seniority­cum­merit has been given go by.

8.1 It is submitted by the learned advocate(s) on behalf of

the original writ petitioners that as such in the advertisement,

the  only  eligibility criteria  was that  a  candidate  shall  have to

obtain minimum 40% marks in the written test and no minimum

marks  were  prescribed for the interview and the  performance

appraisal reports.

8.2 Relying upon the decision of this Court in the case of

B.V.Sivaiah v. K. Addanki Babu reported in (1998) 6 SCC 720, and

another 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 to dismiss the present appeals.

9. We have heard learned counsel for the respective

parties at length.

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At the outset, it is required to be noted that the

promotion to the post of Junior Management Scale II is governed

by the principal of seniority­cum­merit.  It is true that as per the

rule and as per the eligibility criteria mentioned in the rule, the

selection shall be on the basis of performance in the written test,

interview and performance  appraisal reports for  preceding five

years.  As per the rules, 60 marks are allotted for written test, 20

marks for interview and 20  marks for performance appraisal

reports.   The rule further provides that a candidate shall be

required to appear in the written test comprising of two parts, viz,

Part ‘A’ and Part ‘B’.  60 marks allotted for written test are further

divided as under:

Part ‘A’ 30 marks

Part ‘B’ 30 marks

The rule further provides that a list of only those candidates who

secure minimum 40% marks in each part shall be prepared and

such candidates shall be called for interview.  It is true that the

rule do not provide any minimum qualifying marks for interview

as well as performance appraisal.  However, at the same time, the

authority/Selection Committee took a conscious decision to fix

the benchmark of having 12 marks each out of 20 marks each in

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interview as  well  as  performance  appraisal reports.  Both the

learned Single Judge as well as the Division Bench found fault

with the same  and  observed  and  held that further fixing the

qualifying  marks/benchmark  to  obtain minimum 12 marks  in

the interview and the performance appraisal was not permissible

and that it would defeat the principle of seniority­cum­merit.  The

learned Single Judge therefore directed to prepare the fresh

promotion list by prescribing the  minimum necessary cut off

merit marks out of 100 so that the rule of seniority­cum­merit

could be made applicable.

10. When the aforesaid order passed by the learned Single

Judge  was  challenged  before the  Division Bench, the  Division

Bench, by the impugned judgment and order, not only dismissed

the  appeals,  but  also   set aside the  directions issued  by the

learned Single Judge to prepare a fresh select list by prescribing

the  minimum necessary cut off  merit  marks out of 100 and

directed the establishment to conduct the fresh exercise for

promotion,  meaning  thereby, the Division Bench set  aside  the

entire select list.   In the absence of any finding by the learned

Single Judge that the select list was vitiated on account of any

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irregularity, the Division Bench was not justified in setting aside

the entire select list and ordering fresh exercise for promotion.

11. Now so far as the finding recorded by the learned

Single Judge and the  Division Bench that further fixing the

qualifying  marks/benchmark of  obtaining  minimum 12  marks

each in the interview and the performance appraisal reports is

not  permissible  and  it  would defeat the  principle  of seniority­

cum­merit is concerned, as observed and held by this Court in

the case of  Bisawamber Patro (supra), the same is permissible.

This Court was considering a similar situation and the similar

rules governing promotions from Junior Management Scale I to

Middle Management Scale II.   In the case before this Court, the

rule  was similar to the  rule in the present  case.   In the  rule

before this Court, also there was no minimum qualifying marks

for the interview provided.  However, the bank in addition to the

requirement of 40% qualifying marks in the written test further

fixed the qualifying marks of 60% for general candidates and 55%

marks for SC/ST candidates on the aggregate marks comprising

written test, performance appraisal reports and interview.   That

thereafter the names of all the candidates who got 60% or above

in the aggregate were put in the list for promotion strictly as per

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their seniority.  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 promotion challenged the select list on the similar

grounds on which the select list in the present case was

challenged.  The High Court allowed the writ petition holding that

prescription of the benchmark of  60% marks  in  the aggregate

was in violation of the promotion policy and the rules governing

the field.  Consequently, the High Court allowed the writ petition

and directed the bank to make fresh selection in accordance with

the rules.   Reversing the order passed by the High Court, and

even after considering the decision of this Court in the case of

B.V.Sivaiah (supra) (the judgment which has been relied upon by

the High Court), this Court observed that the procedure adopted

by the bank to further fixing the qualifying marks in the written

test,  performance  appraisal reports  and the interview has  not

violated the principle of seniority­cum­merit.  While observing so,

this Court took into consideration the observations made by this

Court in para 13 of another decision of this Court in the case of

Rajendra Kumar Srivastava (supra).

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12. Applying the law laid down by this Court in the

aforesaid two decisions to the facts of the case on hand, we are of

the opinion that both, the learned Single Judge as well as the

Division Bench erred in holding that further fixing the qualifying

marks to be obtained in the interview and the performance

appraisal reports, viz., 12 minimum marks each to be obtained in

interview and the performance appraisal reports and fixing such

a benchmark would violate the principle of seniority­cum­merit.

As the promotion to the post of Junior Management Scale II shall

be made on the basis of seniority­cum­merit, the only

requirement would be that after it is found that the candidates

have possessed the minimum necessary merit, namely, minimum

40%  qualifying  marks in the  written test and  minimum  12

marks each out of 20 marks each in interview and the

performance appraisal reports respectively, thereafter the

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,

the present appeals are allowed.  The judgment and order passed

by the  learned Single  Judge of the High Court as well  as  the

impugned judgment and order passed by the Division Bench are

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hereby quashed and set aside.  It is directed that the respondent­

authority shall  prepare a  fresh select  list for  promotion to the

post of Junior Management Scale II and to consider the case of

those candidates who crossed the benchmark of having obtained

minimum 40% qualifying marks in the written test and having

obtained  minimum 12  marks each  out of 20  marks each for

interview and performance appraisal reports respectively and

those candidates be promoted in the order of seniority,

irrespective of anyone among them having obtained more marks.

14. The present appeals are allowed to the aforesaid

extent.  No order as to costs.

……………………………….J. [L. NAGESWARA RAO]

NEW DELHI; ……………………………….J. APRIL 09, 2019. [M.R. SHAH]

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