Lalit Kumar Virmani And Ors. vs United Bank Of India And Ors.
1996 Latest Caselaw 459 Del

JUDGMENT

Devinder Gupta, J.

(1) Petitioners are Junior Management Grade (for short JMG) Scale I Officers in the United Bank of India. In this writ petition, filed under Article 226 of the Constitution of India, they have prayed for quashing Circulars, Annexures P-4 and P-6 dated 21.3.1995 and 21.4.1995 being violative of the policy, Annexure P-l issued by the respondent bank. Circulars have been issued by the respondent Bank for the holding of written examination for promotion of officers from Jmg Scale I to Middle Management Grade (for short MMG) Scale Ii with a view to fill up the remaining vacancies in Normal Track under different circles, which could not be filled up in the promotion process commenced through Circular dated 9.12.1993, due to non-availability of suitable (successful) candidates, appearing from their respective circles.

(2) The facts relevant for deciding the petition are that the respondent Bank is a Banking Company constituted under Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 with its registered office at Calcutta. It has a Chairman-cum-Managing Director as its head. It is under the overall control of Ministry of Finance, Department of Economic Affairs (Banking Division), Government of India, which has exclusively and administrative control over the respondent Bank.

(3) Under the revised promotion policy, framed under the United Bank of India Service Regulations, 1979 (hereinafter referred to as the 'Regulations') 326 vacancies were declared by the respondent Bank for being filled up by promotion from Jmg Scale I to the post of Mmg Scale II. 195 vacancies were identified in the Normal Track Channel and 131 in the Fast Track Channel. In pursuance to Circular dated 9.12,1993 a common written test for filling up of these vacancies was held on 29.5.1994, which was followed by interviews. 131 vacancies identified in the Fast Track Channel were duly filled up. Only 85 vacancies out of 195 in the Normal Track could be filled up thereby leaving 110 vacancies unfilled. According to the petitioners' case, the respondents were bound to shift these unfilled 110 vacancies from the Normal Track Channel to Fast Track Channel and to make promotions against the said vacancies, on merits, from out of candidates in the Fast Track Channel, strictly in accordance with Clause 2.3(c) of the policy. Instead of doing so, impugned Circulars Annexures P-4 and P-6 were issued for the conduct of a fresh examination on 14.5.1995 of Jmg Scale I Officers in the category of Normal Track for promotion to Mmg Scale Ii, confined only to those, who had failed in the combined written test held on 29.5.1994. Petitioners' case is that they had opted for promotion in the Fast Track Channel and were successful in the examination. Instead of adopting the only recourse, which is available to the respondents under the policy, fresh written test has been scheduled to be held for such of the Normal Track candidates, who had remained un sucessful. Respondents' act in issuing the Circulars is challenged as illegal, being mala fide and arbitrary to fill up 110 vacancies under Normal Track, whereas as per the policy the vacancies ought to have been shifted to the Fast Track Channel and filled up from amongst the candidates from the merit list in the Fast Track Channel. Accordingly direction is sought for quashing of the Circulars; and the test, if any, held on 14.5.1995 and the promotions made, if any, and to direct the respondents to shift the unfilled 110 vacancies of Normal Track to the Fast Track and to fill up the same from amongst Fast Track candidates, who were declared successful in the common written test held on 29.5.1995 and the subsequent interviews held on 7/8th March, 1995, strictly on the basis of merits. Petitioners had also prayed for an interim relief. On 24.5.1995, while issuing show cause notice it was directed that no appointment shall be made on the basis of the test held on 14.5.1995. Parties have now exchanged their affidavits and in view of the fact that interim order is operating, we heard learned Counsel for the parties at this stage itself on merits.

(4) RESPONDENTS' case is that the policy does not debar the respondents in conducting one more written test, to find out, whether any "suitable candidates" are available in Normal Track. A written test of competitive nature may decide only the comparative merits. It cannot decide suitability. All candidates, who opted for Normal Track promotions had putin 12 years service, were possessed of minimum qualifications and were in the zone of consideration. Against them no disciplinary action or criminal proceedings were pending and were also eligible and suitable. In case number of posts at promotion level were more than the number of suitable candidates under the Normal Track, there would have been no necessity for a written test or interview, since number of posts were less, compared to number of suitable candidates. It was per chance that only a few candidates could qualify in the written test. Candidates comparatively less meritorious would not become ineligible and cannot be said to be unsuitable for the job. In order to judge the suitability, the respondent Bank was conducting one more written test and it is only on adopting this method in case the Bank would come to a conclusion that no "suitable candidate" in Normal Track is available, the said unfilled vacancies can be transferred to the Fast Track Channel.

(5) According to the respondents, the policy has to be read and interpreted in an harmonious and reasonable manner. Rule 2.3(c) of the Policy cannot be given an isolated and narrow interpretation. Bearing in mind the underlying principle that promotional avenues should be available to all the officers, both senior and junior, it is the Bank's responsibility to have a right mix of merit and performance at different levels of organisations. Provision of interchangeability of vacancies and shifting of candidates from one track to the other has been made in die policy to enable the Bank to make marginal adjustments only in filling up of vacancies in a particular track. In case the interpretation of petitioners, provisions of interchangeability of vacancies and shifting of candidates from one track to other are treated as mandatory, it would totally defeat the very purpose and object of ensuring the availability of adequate number of officers with local background at Mgg Scale Ii level and Mmg Scale Iii level, in different circles.

(6) The two channel promotion system, according to the respondents, in the policy, has been evolved by making classification between the two sources with a view to secure better administration and smooth functioning of the bank. Classification has been made by providing two separate feeder categories. In the matter of fixation of ratio for promotion, the same has been fixed reasonably and it has a rational nexus with the object sought to be achieved, namely, of securing better administration. The Competent Authority of the Bank adopted a higher ratio for the one source, namely, the Normal Track for promotion to Mmg Scale Ii than the other source, namely. Fast Track, in order to have homogentily and to avoid imbalance, by introducing circle-wise concept and at the same time to give a reasonable opportunity for promotion to the personnel in the Fast Track. The ratio, therefore, was fixed at 60-40 between Normal Track and Fast Track. Had the unfilled vacancies been transferred from Normal Track to Fast Track, it would have led to a totally reverse position i.e. the ratio would have been about 30% in the Normal Track as against 60% envisaged in the policy leaving 70% of the vacancies for the Fast Track candidates. The same would have completely destroyed the object and spirit of the circle wise concept and given birth to imbalance, having no nexus with the object in paras 4 and 5 of the preamble. It is in the light of these pleadings that we heard Counsel for the parties.

(7) We may at the very outset refer to the promotion policy, which is not under challenge. MainlyinterpretationofClause2.3 of the policy is subject-matter of issue.

(8) The promotion policy for the officers of the United Bank of India was framed in the context of the provisions of Regulation 17 of the United Bank of India (Officers) Service Regulations, 1979, having regard to the guidelines, issued by the Government of India, Ministry of Finance, Department of Economic Affairs, (Banking Division) from time to time. The policy provides a built-in motivation, in the system of promotion, to meet the legitimate aspiration of the officers for assumption of higher responsibilities in the Bank, at various stages and their career. The policy states that the Government in July, 1990 advised that all promotions, within the officer's cadre, shall be on the basis of merit with weightage, if any, for service record, educational/professional qualifications etc. but no weightage to be provided for seniority. The policy further states that mere eligibility shall not qualify any officer for promotion. Promotion is dependent upon performance and potential. The then existing policy was reviewed and revised with a view to provide a definite career path to the officers and it was declared that the same was done to ensure availability of officers with right mix of merit and performance, at different level of organisation. It was with the aim of reducing the waiting period for participation in the promotion process, in respect of officers in general stream that two channels of promotion system were provided, for promotion to Mmg Scale Ii and Mmg Scale lll,namely. Normal Track and Fast Track. The preamble of the policy further states that for initiating adequate availability of officers with local background at Mmg Scale Ii and Mmg Scale Iii level, the vacancies apportioned to Normal Track are to be filled up from amongst the eligible candidates in different circles. Four factors, identified as relevant, for promotion in the revised policy are: (i) educational and professional qualification;, (ii) knowledge of banking; (iii) On the-job performance; and (iv) potential for growth and development.

(9) Promotions of Jmg Scale I Officers to Mmg Scale Ii in the two channel system is in the ratio of 60-40 for the Normal Track and Fast Track. 60% of the identified vacancies in different circles are to be filled up under the Normal Track and the remaining 40% of the vacancies on "all india basis", are to be filled up under the Fast Track. Similarly promotions from Mmg Scale Ii to Mmg Scale Iii are in the ratio of 50-50, namely, 50% of the identified vacancies, in different circles under the Normal Track and the remaining 50%, on All India basis under the Fast Track.

(10) Eligibility for promotion from Jmc Scale I to Mmg Scale Ii, under the Normal Track and Fast Track Channels, is otherwise the same, except for the period of service rendered. In the case of Normal Track it is 12 years satisfactory service in Jmg Scale I with two years rural branch service experience, whereas in the case of Fast Track it is 7 years satisfactory service in Jmg Scale I, with two years rural branch service. Similarly for promotion from Mmg Scale Ii to Mmg Scale Iii, in the Normal Track the eligibility is eight years satisfactory service as Mmg Scale Ii and for Fast Track it is 5 years satisfactory service in Mmg Scale Ii with three years rural and/or semi-urban branch service in the officer cadre respectively, for both.

(11) Chapter Ii of the policy deals with selection procedure and declaration of the vacancies for promotion to Mmg Scale Ii and Mmg Scale III. Applications are required to be invited, from eligible officers, to participate, either in the Normal Track or in the Fast Track. In so far as promotion from Jmg Scale I to Mmg Scale Ii is concerned, all the applicants as per Clause 2.1(b) are required to appear in a common written test. Qualified candidates under the Fast Track are to be listed in order of their marks (on all India basis), obtained in written test and similarly candidates under the Normal Track are to be listed circle-wise, in order of marks secured by them in the written examination. From the list of successful candidates, who are included in the two lists, separately, under the Fast Track and Normal Track, candidates from the top, to the extent of 3 times the number of vacancies, identified under the two Channels, are to appear for interview before the interview panel. Under the Fast Track Channel, promotions are to be made on all India basis whereas under the Normal Track Channel promotions are to be circle-wise. There are six circles, namely. West Bengal with Tripura and Andaman & Nicobar Islands; Bihar; Orissa; North East (excluding Tripura); North India; and South-West India. We are not concerned in the instant petition with the promotion to Mmg Scale Iii for which Clause 2.1 (e) apply for written examination.

(12) After the candidates, who seek their promotion by participation, either in Normal Track or Fast Track, are enlisted, in order of merit, in a common written test, under the two lists, namely, on All India basis for Fast Track and circle-wise for Normal Track, interview is the next step, to assess their ability and potential. Clause 1.10 deals with interviews and it says that ability and potential of officers for promotion to Mmg Scale Ii, Mmg Scale Iii and to the higher scale is to be assessed through a process of interview by interview panels, which are to be constituted by the Chairman & Managing Director or the Executive Director, in accordance with the guidelines, issued by Government of India from time to time. Preparation of merit list is the next step, which is dealt with in Chapter Ii from Clauses 2.6 to 2.14.

(13) Clause 2.6 says that on completion of various tests/appraisal process, the marks secured by each officer, on each factor, will be adjusted, according to the weightage attached to each factor and the aggregate marks tabulated. Final merit list will be prepared in the descending order of aggregate marks and in case two officers secure identical aggregate marks their order in the merit list will be as per their inter sc-seniority.

(14) Clause 2.8 says that merit list will consist of two parts; Normal Track for six circles and the Fast track (on All India basis). Officers empanelled for promotion to Mmg Scale Ii and Mmg Scale Iii under the two channels will be listed thereafter in a common seniority list and seniority will be reckoned with reference to the date of promotion and when the date of promotion is the same seniority of the officers will be determined on the basis of inter sc-seniority in the previous scale. Clause 2.9 enables the Competent Authority to make promotions from merit list, strictly in order of merit, to the extent of vacancies, in the next higher grade. Competent Authority is also empowered, when in his judgment, notwithstanding, the order of merit, an officer is not promotable, after recording specific reasons for reaching such judgment, to exclude the name of the officers from the merit list or hold his promotion in abeyance. Cut off date as per Clause 2.10 for ascertaining eligibility and reckoning educational and professional qualification is30thJune every year for Mmg Scale Ii and Mmg Scale III. Clause 2.11 requires promotions of officers, equal to the number of vacancies identified, to be made in one lot to the next higher grade. Clause 2.12 deals with determination of number of vacancies and reads:

"2.12.The number of vacancies in each grade/Scale shall be determined by the Chairman & Managing Director from time to time subject to the guidelines as may be issued by the Government in this regard. Notwithstanding the above, the Chairman & Managing Director may decide to keep the vacancy/ 677 vacancies in any grade/scale unfilled or under reserve for administrative reasons."

(15) Clause 2.14 says that those who are unsuccessful in the preceding promotion process may participate in the next process, when held.

(16) 15. As noticed above, it is Clause 2.3 which is subject-matter of the dispute amongst parties. According to the petitioners, when under the Normal Track, suitable candidates are not found for filling up the vacancies, which have been identified in a circle, the unfilled vacancies are required to be shifted to Fast Track and to be filled up from the merit list prepared for the Fast Track Channel. As a result of the common written examination, and interview out of 195 vacancies, which had been identified under the Normal Track only 85 could be filled up and 110 vacancies remained unfilled, since suitable candidates were not found available, for filling up these 110 vacancies. Therefore, according to Clause 2.3(c) these 110 vacancies ought to have been transferred to be filled up in accordance with the merit from the merit list prepared for the Fast Track.

(17) According to learned Counsel for the respondents and as is the stand taken by the respondents in their reply, it was not obligatory for the respondents to have transferred 110 vacancies from Normal Track to Fast Track. The examination in question, subsequently notified under the two impugned circulars is with a view to adjudge suitability of the candidates, who had opted under the Normal Track and it is only on such subsequent examination that the Bank will be in a position to ascertain whether no suitable candidate is available in the Normal Track. The relevant stand taken by the respondents is to be found in preliminary paragraphs 2(b) and (e) of the reply, which read:

"2(B)The contention in the writ petition is that since the rule says "if no suitable candidates are available in the Normal Track", no second written test could be held by the Bank for Normal Track candidates. There is a fallacy in this contention. The Bank is holding the second written test only to find whether any suitable candidates are available in the Normal Track. In fact, only if the Bank conducts just one written test and decides per sc on that basis that no suitable candidates are available in the Normal Track, then only the Bank will be violating the promotion policy. (c) It is submitted that a written test of a competitive nature may decide only the comparative merits. It cannot decide suitability. In fact, all those who opted for Normal Track promotions, who have put in requisite (12 years) experience, who have the minimum qualifications and who come in the zone of consideration and against whom no disciplinary action or criminal proceedings are pending are all eligible and suitable. If the number of posts at promotion level are more than the number of these suitable candidates, there would have been no necessity for a written test or interview at all. Since the number of posts are less compared to the number of suitable candidates, the necessity to prepare a merit list amongst them arises. Simply because, by sheer chance, in a particular year only a few candidates have passed in the written test, all other comparatively less meritorious candidates do not become unsuitable for the job. There is clear misconception about the words: "In case... under Normal Track, suitable candidates are not found the filling all the vacancies identified in a ciricle" in Rule 2.3 (e)."

(18) As per the stand taken by the respondents se 2.3 (e) nowhere states that only one written test has to be conducted in a year or for the identified number of vacancies in a circle. The impugned Clause does not refer to any written test at all. It emphasises that the Bank ultimately coming to a conclusion, after trying all possible methods, that for certain identified Normal Track vacancies, no suitable candidates are available, in that case, such vacancies are to be transferred to the Fast Track. Their stand further is that candidates in the merit list need not be the only suitable candidates. A merit list based upon comparative performance of work and written test or interview is made only because number of suitable candidates is more than number of vacancies. A merit list is wholly different from list of suitable candidates. It is also stated that the impugned circulars have been issued only in furtherance of Clause 2.3(c). Bank, under the policy, is required to explore all possibilities to ensure that when suitable candidate is available the Normal Track vacancy does not go to the Fast Track. According to the stand taken by the respondent Normal Track is meant for older people. Normal track officers on promotion are posted only within the circle concerned. The posts are not transferable outside circle. The Fast Track vacancies are on all India basis and the incumbents are transferable on all India basis. Normally younger people prefer Fast Track and the bank requires to have a proper mix of normal and Fast Track candidates. Normal track candidates have more experience and they know the local language and culture and this method gives a proper mix of old and young, of experienced and dynamics. If on the basis of a single written test, may be a tough one in a particular year, large number of vacancies in Normal Track will have to be shifted every now and then to the Fast Track that would cause complications and would defeat the very purpose and scheme of the double track promotion policy.

(19) We may now analyse relevant Clause 2.3 of the policy, which reads :

"2.3(a) In case the number of qualified ellgible candidates in a circle exceeds 3 times the number of vacancies identified in the circle under the Normal Track, the qualified /eligible officers below the cut-off point will be shifted to the Fast Track after necessary adjustment of the marks obtained in the written test. (b) For promotion to Scale-11 and Scale-111 under the Normal Track, in case the number of qualified/eligible candidates in a circle is less than the number of vacancies identified for the circle, the balance number of vacancies will be shifted to the Fast Track. (c) In case, for promotions to Scale-11 and Scale-111 under the Normal Track suitable candidates are not found for filling all the vacancies identified in a circle, the unfilled vacancies will be shifted to the Fast Track and filled from the respective merit list prepared under the Fast Track and vice-versa."

(20) Clause (a) says that in case number of qualified or eligible candidates in a circle exceeds three times the number of vacancies, identified in the circle in the Normal Track, the qualified/eligible officers below the cut off point will be shifted to Fast Track, after necessary adjustments of marks obtained in the written test. In other words, it says that when in a circle number of qualified eligible persons exceed 3 times number of vacancies, as have been identified under the Normal Track, all qualified/eligible officers below cut off point will then be shifted to Fast Track and, thus, would be eligible for being promoted under the Fast Track Channel on all India basis. Of course necessary adjustment of marks obtained in the written test will have to be done. It is Clause 1.8 which amplifies the extent of weightage for the four factors referred to in para 6 of the preamble. Distributions of marks for promotion from Jmg Scale I to Mmg Scale Ii under Fast Track and Normal Track as also from Mmg Scale Ii to Mmg Scale Iii under Fast Track and Normal Track is to be in the following manner:

Educational/ Written Potential Professional Examination On-the-job assessed Promotions qualification on knowledge performence through Total of Banking mance interview Scale-1 to Scale-11 (Fast Track) Scale-1 to Scale-11 (Normal Track) Scale-11 to 10 30 35 25 100 Scale-111 (Fast Track) Scale-11 to 10 - 50 40 100 Scale-111 (Fast Track)

(21) When there is shifting from Normal Track Channel to Fast Track Channel, of candidates under Clause 2.3(a), adjustment of marks in the written examination will have to be done by suitable proportionate increase from out of 30 to out of 40, so that the shifted candidates are brought at the same level of Fast Track from Normal Track.

(22) SUB-CLAUSE (b) of Clause 2.3 provides for shifting of Normal Track vacancies to the Fast Track in the event of number of qualified / eligible candidates in a circle being less than the number of vacancies identified for promotion. Balance number of vacancies automatically stand shifted to the Fast Track.

(23) SUB-CLAUSE (e) of Clause 2.3 on its literal interpretation suggests that when suitable candidates, under the Normal Track are not found, for filling all the identified vacancies in a circle, the unfilled vacancies will be shifted to Fast Track and filled from the merit list prepared under the Fast Track and vice versa. Use of the words "vice versa" towards end of this Clause also takes care of the reverse situation when for promotion under the Fast Track, suitable candidates are not found for filling up all the vacancies, identified on all India basis, under the Fast Track, such unfilled vacancies will then be shifted to Normal Track and filled from amongst the merit list prepared under the Normal Track.

(24) "SUITABILITY" of the candidates for promotion from Jmg Scale I to Mmg Scale Ii, ' "5 promotion policy is to be adjudged on the basis of the written examination and the interview. In order to correctly appreciate the submissions and the meaning of the Sub-clause (e) of Clause 2.3, it will be necessary to quote the preamble, which spells out the object sought to be achieved under the revised promotion policy. It says :

"...THE policy provides built-in motivation in the system of promotion to meet the legitimate aspirations of the officers for assumption of higher responsibilities in the Bank at various stages of their career. The concept of the minimum length of service for promotion from one scale to another ensures adequate grooming before assuming higher responsibilities in course of career movement for officers in the Bank who show proven merit and promise. An officer who completes the required length of service in any particular scale becomes eligible for promotion to the next higher scale and his promotion shall depend on his performance and potential. Mere eligibility shall not, however, qualify any officer for promotion. The number of promotions will, nowere, continue to be linked to the vacancies that may be available in the next higher grade/scale. The Government has in July, 1990 advised that all promotions within the officers' cadre shall be on the basis of merit with weightages, if any, for service record, educational/professional qualifications etc. However, no weightage shall be provided for seniority. In this background, the existing promotion policy has been reviewed and revised to provide a definite career path to the officers while ensuring availability of officers with right mix of merit and performance at different level of organisation. With a view to reducing the waiting period for participating in the promotion process in respect of the officers in the general stream, a two channeled promotion system for promotion to Middle Management Grade (MMG) Scale-11 and Iii is being introduced viz. (i) Normal track and (ii) Fast track. For ensuring adequate availability of officers with local background at the Mmg Scale-11 and Iii levels, the vacancies apportioned to the Normal Track will be filled up from among the eligible candidates in the different circles. In the revised plicy, the following four factors have been ident'fied as relevant for promotion decision in the Bank: (i) Educational and Professional Qualifications; (ii) Knowledge of banking; (iii) On-the-job Performance (iv) Potential for growth and development."

(25) Thus, under the policy promotion is dependent only on performance and potential. Mere eligibility alone does not qualify an officer for promotion. Due care has been taken to have a right mix and performance at different levels. The overall object sought to be achieved is by a built-in motivation to meet the legitimate aspiration of the officers for assumption of higher responsibilities at various stages of their career. Emphasis is on performance.and potential, in order to show proven merit. An officer on completion of the required length of service becomes eligible for promotion. In order to give incentive to energetic, dynamic and pushing young officers, as it appears, two channel promotion system is provided -one is Normal Track and the other is Fast Track. Normal track is confined to separate circles which are six in number, whereas Fast Track is meant for All India basis but on the basis of a common written test for promotion from Jmg Scale I to Mmg Scale II.

(26) Clause 2.3 read with the preamble and the object sought to be achieved suggest that separate lists of successful candidates under Fast Track and Normal Track are prepared, according to their respective merits. In the case of Fast Track candidates on All India basis and under the Normal Track on circle-wise basis, in order of marks secured by them, in written examination. An officer is expected to secure at least 40% marks in written examination to become eligible for promotion. The Competent Authority, however, is empowered to exercise discretion by lowering the cutoff points. Potentiality and ability of the officer is assessed through interview. It is the combined result of written examination and interview which makesanofficersuitableorunsuitableforpromotionasisstatedinClause2.7which defines the word "unsuitable". It says :

(27) Officers who have failed to appear in the written examination or have obtained, subject to provision ofpara-1.9(iii)(b), less than prescribed qualifying marks in the written examination or have been given C rating in the interview will be considered as unsuitable for promotion and their names will not figure in merit list."

(27) Promotions are to be made only in order of merit. The provision 'or promotion is to be found in Clauses 2.8 and 2.9 which have been deal with in earlier part of the judgment.

(28) The sum and substance of Clause 2.3 in the light of the entire scheme is that in case number of qualified candidates in a circle for permotion to Scalpell and Scale Iii under the Normal Track are not found suitable for filling up of the vacancies identified, the unfilled vacancies will be shifted to Fast Track and filled from the merit list prepared under the Fast Track rind in case under the Fast Track suitable candidates are not found suitable for filling up vacancies on all India basis the unfilled vacancies will then be shifted to Normal Track and then to be filled from the merit list prepared circle-wise under the Normal Track.

(29) There is a fallacy in the stand taken by the respondent.which stand has been quoted in the earlier part of the judgment. It is not correct to say that when under the Normal Track the number of identified vacancies are more than the candidates, promotions can be made without subjecting such of the candidates, who opted for participation in the normal track to written examination and interview. It is also not correct to say that in one promotion process, it is open to the respondents to hold more than one common written examination. Once a candidate has remained un sucessful in written examination and gets C grading in interview, he is debarred for being promoted under the selection process. Of course he can participate only in the next promotion process, as and when held. The respondents' stand, if accepted, will nullify the object which is sought to be achieved under the policy which clearly stipulate that mere eligibility shall not qualify an officer for promotion. It is to be on the basis of merit alone with due weightage to the service record, education/professional qualification etc. but without any weightage to seniority. Promotion is dependent on part performance and potential.

(30) In the instant case vacancies had been identified under the Normal Track, which were 195. Out of these only 85 could be filled. Others could not be filled and it has to be assumed that after the combined written examination and interview suitable candidates were not found available for filling up of the remaining 110 vacancies. These 110 vacancies in view of Clause 2.3(c) were required to be shifted to Fast Track and were required to be filled up from the merit list prepared under the Fast Track. It is not a case where the Chairman and Managing Director had taken any decision, to keep any of the vacancies, in the grade unfilled or kept reserved for administrative reasons which decision could have been taken under Clause 2.12. Vacancies are sought to be filled up by issuing the impugned Circulars by holding fresh examination by giving an additional chance to such of the officers in Jmg Scale I, who were found not suitable within the meaning of the word as used in Clause 2.7. The impugned Circular Annexure P-4 dated 28.3.1995 itself suggests that the same has been issued to fill up the remaining vacancies in Normal Track under different circles, which could not be filled up due to non-availability of candidates (successful candidates) appearing from their respective circles. The circular further states that all officers who participated under Normal Track in the promotion process, which was initiated through Circular dated 9.12.1993, but could not figure in the list of successful candidates, as notified on 27.3.1995 will be called for written test and no further applications will be required to be submitted by the concerned officers for the purpose. Impugned Circular, Annexure P-6, dated 21.4.1995 also states that written examination for promotion from Jmg Scale I to Mmg Scale Ii under Normal Track of all eligible officers, who participated under Normal Track in the promotion process, initiated as per the Head Office Circular dated 9.12.1993 but did not figure in the list of successful candidates as notified on 27.3.1995 has been scheduled to be held on 14.5.1995. Call letters to eligible applicants for promotions were issued and the applicants were required to appear in the written examination. In case such of the Jmg Scale I who were eligible had opted and participated under the normal track in the promotion process, initiated through circular dated 9.12.1993, under the aforementioned promotion policy but did not figure in the list of successful candidates, on true and correct meterpretation of Clause 2.3(c) read with Clause 2.7, the procedure which the respondents ought to have followed should have been to shift the unfilled vacancies in the Normal Track to the Fast Track and then to fill up the same from the merit list prepared under the Fast Track. Policy no where authorises the respondents to give a second chance to those officers who remained unsuccessful. Clause2.7ofthepromotionpolicydebarssuchofficers to be included in the merit list and Clause 2.14 says that those who remain unsuccessful may participate in the next process, when held. Clause 2.14 reads :

"2.14.Those who are not successful in the preceding promotion process may participate in the next process when held."

Clause 2.7, as noticed above, debars the promotion of the officers, who fail to appear in the written examination or who fail to obtain less than the prescribed qualifying marks in the written examination or having C rating in the interview are considered as unsuitable for promotion. Clause 2.3 has to be read with Clause 2.7 and the words suitable candidates not found for filling of identified vacancies as used in Sub-clause (e) of Clause 2.3 therein would mean such of the officers, who after having opted for promotion either do not appear in the written examination or remain unsuccessful therein or are rated as 'C' in the interview. Such candidates who remain un sucessful in promotion process will not find their place in merit list and will have to take their chance only in next process. Action of the respondents in issuing the impugned Circulars accordingly is contrary to the policy, which does not authorise the respondents to give a second chance to those officers, who remained unsuccessful or were not found suitable for promotion in the promotion process initiated through Circular dated 9.12.1993. It also debars such officers to partake in the process of promotions in question. They can avail of the chance and participate only in next process, when held.

(31) Admittedly, the petitioners' position in the merit in the common written test is as per annexure P-2. It is not the respondents' case that any decision has been taken not to fill up the vacancies. Vacancies identified have to be filled up. Respondents are bound under the promotion policy to transfer the unfilled vacancies under the Normal Track which could not be filled, for want of availability of successful suitable candidates, to the Fast Track to be filled up according to merits as per merit list. In view of the above, the writ petition is allowed. The impugned Circulars Annexures P-4 and P-6, being contrary to the policy, Annexure P-l are quashed and set aside. Respondents are directed to act in accordance with Clause 2.3(c) as interpreted aforementioned by transferring the unfilled vacancies under the normal track for promotion from Jmg Scale I to Mmg Scale Ii to the Fast Track and fill up those vacancies from the merit list prepared in the Fast Track. Resultantly the rule is made absolute with no order as to costs.