Madhya Pradesh High Court

Vinod Kumar Singhai vs The Union Of India & Ors. on 29 March, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 29th OF MARCH, 2023
WRIT PETITION No.5323 of 2001

BETWEEN:-

1. VINOD KUMAR SINGHAI, SON OF LATE
KASTOOR CHAND SINGHAI, AGED ABOUT 48
YEARS, MANAGER, GENERAL BANKING (HEAD
OF THE DEPARTMENT), MAIN BRANCH,
DAMOH-PANNA-SAGAR, KSHETRIYA GRAMIN
BANK, HEAD OFFICE, DAMOH, M.P.

.....PETITIONER
(BY SHRI ARUN KUMAR SONI - ADVOCATE)

AND

1. UNION OF INDIA, THROUGH THE SECRETARY
TO GOVERNMENT OF INDIA, MINISTRY OF
FINANCE, DEPARTMENT OF ECONOMIC
AFFAIRS, PARLIAMENT STREET, NEW DELHI.
2. THE BOARD OF DIRECTORS, DAMOH-PANNA-
SAGAR, REGIONAL RURAL BANK, DAMOH, M.P.
3. THE CHAIRMAN,DAMOH-PANNA-SAGAR,
REGIONAL RURAL BANK, HEAD OFFICE,
DAMOH, DISTRICT DAMOH, M.P.
4. DAMOH-PANNA-SAGAR KSHETRIYA GRAMIN
BANK, HEAD OFFICE, DAMOH, THROUGH ITS
MANAGER.
5. SHRI MUKESH KUMAR JAIN, SON OF SHRI
KOMAL CHAND JAIN, BRANCH MANAGER,
DAMOH-PANNA-SAGAR KSHETRIYA GRAMIN
BANK, BRANCH KILLAI NAKA, DISTRICT
DAMOH.
6. SHRI ALOK KUMAR SHARMA, SON OF SHRI
KAILASH NARAYAN SHARMA, BRANCH
MANAGER, DAMOH-PANNA-SAGAR
KSHETRIYA GRAMIN BANK, BRANCH BANDA,
DISTRICT SAGAR.
2

7. SHRI SHANTI KUMAR JAIN, SON OF SHRI
POORAN CHAND JAIN, BRANCH MANAGER,
DAMOH-PANNA-SAGAR KSHETRIYA GRAMIN
BANK, BRANCH PATHARIYA, DISTRICT
DAMOH.
8. SHRI JANARDANDUTT TIWARI, SON OF SHRI
RAMESHWAR PRASAD TIWARI, HEAD OFFICE,
DAMOH-PANNA-SAGAR KSHETRIYA GRAMIN
BANK, MANAGER-PRESIDENT
SACHIVALAYA/YOJNA VIKAS (HEAD OF THE
DEPARTMENT), DAMOH.
9. THE PRESIDENT, DAMOH-PANNA-SAGAR
KSHETRIYA GRAMIN BANK, HEAD OFFICE,
DAMOH (M.P.)
......RESPONDENTS
(SHRI ASHISH SHROTI - ADVOCATE FOR THE RESPONDENT/BANK)
............................................................................................................................................
Reserved on : 16.02.2023
Pronounced on : 29.03.2023
............................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER

This petition is of the year 2001 and pleadings are complete. The case is in the list of final hearing cases. Since learned counsel for the parties are ready to argue the matter finally, therefore, it is finally heard.

2. Learned counsel for the petitioner by the instant petition filed under Articles 226/227 of the Constitution of India is challenging the petitioner's supersession over his juniors to the post of Middle Management Grade Scale II (MMGS-II) saying that in the rules, the criteria for promotion is seniority-cum merit but the respondents for securing promotion, fixed the cut off marks i.e. 70 and even after securing such a higher marks by the petitioner, it was treated to be

minimum cut off marks which cannot be considered to be a proper criteria of seniority-cum-merit and according to him, this criteria is otherwise merit-cum-seniority. In support of his contention, he has placed reliance upon decisions reported in 2006 AIR SCW 2822 Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and Others and AIR 2007 SC 994 Bhagwandas Tiwari and others Vs. Dewas Shajapur Kshetriya Gramin Bank and Others. He further submits that the adverse entries made in the ACRs were never communicated to the petitioner and as such, DPC while considering those ACRs had committed illegality.

3. On the other hand, Shri Ashish Shroti, learned counsel for the respondents submits that in the reply it is very categorically stated that the criteria of seniority-cum-merit is fixed for promotion to the post of Middle Management Grade Scale II (MMGS-II) and the same has been followed by the respondent/Bank. He submits that in the petition, it is not mentioned as to how the criteria adopted by the respondents for considering the case for promotion of the petitioner and other juniors was not proper and that is not seniority-cum-merit but merit-cum- seniority. He further submits that in absence of any specific stand taken by the petitioner in the petition or the ground challenging his supersession, the respondents have not given specific disclosure showing as to what marks were secured by the petitioner. However, he submits that there is nothing illegal done by the DPC because total 36 persons were considered out of which 35 were called for interview and thereafter recommendation for promoting 11 persons was made by the DPC on the basis of their seniority as they secured the minimum cut off marks. The petitioner since did not secure the minimum cut off marks, therefore, recommendation was not made in his favour and as such, no illegality has been committed by the respondents while ignoring the

claim of the petitioner for promotion. So far as the submission made in respect of communication of adverse entries made in the ACRs is concerned, Shri Shroti submits that since this ground was not raised by the petitioner in the petition, therefore, in the reply it is not mentioned whether those ACRs were ever communicated to the petitioner or not. According to him, the petition is without any substance and is liable to be dismissed.

4. Shri Shroti is directed to produce the relevant DPC record convened in the year 1999 if the same is still available with the respondents.

5. The DPC record has been produced. As per the DPC record, 11 persons have been found fit to be recommended for promotion and 36 persons have been considered by the DPC, out of which 11 persons have secured more than the cut off marks i.e. 70. The petitioner secured only 63 marks which is less than the cut off marks i.e. 70 and as such, did not acquire the minimum merit. The case of the petitioner is accordingly not considered for promotion. The respondents have very categorically stated that the DPC was convened on the basis of the criteria seniority-cum-merit and fixed 70 marks as the cut off marks.

6. Although the petitioner has submitted that the criteria which has been laid down by the DPC fixing 70 marks as the cut off marks is not the proper criteria, it is merit-cum-seniority because 70 marks is too high and as per the petitioner, the DPC was convened not on the basis of criteria seniority-cum-merit but merit-cum-seniority.

7. The Supreme Court in case of Harigovind Yadav (supra) has observed as to how the criteria of seniority-cum-merit would be implemented and further observed as under:-

"16. It is thus clear that this Court did not accept the promotion

policy contained in circular dated 2.2.1989 as being in consonance with the principle of seniority-cum-merit. This Court held that the policy which did not prescribe a minimum standard for assessing merit and which promoted candidates on the basis of comparative merit, with reference to total marks obtained by the eligible candidates, followed the merit-cum- seniority principle. The decision in SIVAIAH relating to Area/Senior Managers of the first respondent bank was followed by the High Court in the case of appellant, in its judgment dated 13.10.1998 and it was held that the procedure adopted by the first respondent bank for promotion of third Respondent and V.P. Singh as per circular dated 2.2.1989 was contrary to the Rules which required promotions by seniority- cum-merit, and the bank was directed to redo the promotions by considering the case of appellant and other eligible candidates by adopting the criteria of seniority cum merit. That decision attained finality as the appeal and SLP were rejected. It may be stated that even prior to the decision in SIVAIAH relating to Area/Senior Managers of the first respondent bank, the same view had been expressed in the earlier judgment dated 9.10.1996 of the Division Bench of the Madhya Pradesh High Court in LPA No.151/1996 and connected cases and civil appeals arising out of SLP (c) Nos.17780-81/1997 filed against the said judgment dated 9.10.1996 had been dismissed. Therefore we have several rounds of litigation which had been fought up to this court where the High Court and this court have repeatedly and clearly held that the procedure prescribed, in the promotion policy circular dated 2.2.1989, is not in consonance with the principle of seniority-cum- merit prescribed for promotion under the Rules but amounted to following the principle of merit cum seniority and therefore vitiated. What is surprising is that, in spite of these decisions, the first respondent bank again adopted the very same procedure contained in the promotion policy of 2.2.1989 and again failed to promote the appellant by assigning him marks of 16 (20), 10 (10), 3(5), 24 (40) and 9 (25) and held that he was not eligible for promotion as he did not secure the minimum marks of 10 prescribed for interview. But, admittedly, there was no overall minimum and the procedure required assessment of comparative merit. This is not therefore a case of the appellant failing to secure the minimum necessary merit required for promotion but a case where the appellant's entitlement to promotion was sought to be assessed by adopting a procedure which allotted 20 marks for seniority, 40 marks for performance, 15 marks for posting at rural and difficult centres and 25 marks for interview. The bank has persisted in adopting the merit-cum-seniority procedure in spite of the decisions of this Court in several rounds of litigation referred to above. As the entire promotion procedure adopted by the bank as per its policy dated 2.2.1989 has stood rejected by the High Court and this court in SIVAIAH (supra) as also in the earlier round of

litigation of Appellant, the promotion of third Respondent and non- promotion of appellant by adopting the very same procedure is liable to be interfered with.

17. Interviews can be held and assessment of performance can be made by the Bank in connection with promotions. But that can be only to assess the minimum necessary merit. But where the procedure adopted, does not provide the minimum standard for promotion, but only the minimum standard for interview and does the selection with reference to comparative marks, it is contrary to the Rule of 'seniority-cum-merit'. This aspect of the matter has been completely lost sight of by the learned Single Judge and the Division Bench of the High Court in this round of litigation. As noticed above, they have proceeded on the basis that the appellant having failed to secure the minimum marks prescribed for interview, was rightly denied promotion, by ignoring the principle laid down by this court in SIVAIAH in regard to seniority-cum- merit. At all events, as the promotion policy adopted by the Bank was held to be illegal in the earlier round of litigation (W.P. No. 4485/1993 dated 13.10.1988), the Bank could not have adopted the same policy to again reject the Appellant for promotion. We may also note that the law laid down in SIVAIAH was reiterated in Sher Singh vs. Surinder Kumar [1998 (9) SCC 652] wherein this Court had occasion to consider a similar question relating to the promotion for the post of clerk to Field Supervisor in the case of another Gramin Bank. This Court held that as the criterion for making promotion from the post of clerk to that of Field Supervisor was seniority-cum-merit but the Bank did not follow the criterion of seniority-cum-merit but made promotions on the basis of merit-cum-seniority, the promotion was vitiated and therefore invalid.

18. We will now deal with para 37 in SIVAIAH (supra) relied on by the Respondents. Para 37 related to Chhindwara- Seoni Kshetriya Gramin Bank where the procedure adopted for promotion was different from the criteria that was adopted by the Rewa Sidhi Gramin Bank, first respondent herein. In the case of Chhindwara Seoni Kshetriya Bank, the assessment of minimum necessary merit was by interview. The candidate who secured a minimum of 50 out of 100 marks in the interview, was selected for promotion on the basis of seniority. It was thus found to be a case where minimum standard was prescribed for assessing the merit of the candidates and those who qualified by securing the minimum marks (50%) were promoted strictly as per seniority. Thus, it was in consonance with the principle of seniority-cum-merit. Therefore, the observations in para 37 of SIVAIAH are of no assistance to Respondents. As we have already noticed, in this case, the procedure is not one of ascertaining the minimum necessary merit and then promoting the candidates with the

minimum merit in accordance with seniority, but assessing the comparative merit by drawing up a merit list, the assessment being with reference to marks secured for seniority, performance, postings at rural/difficult places and interview. The fact that the appellant had failed to secure the minimum marks in interview, is not relevant as the entire procedure adopted by the bank (of which interview is a part) is found to be vitiated and not in consonance with the principle of seniority cum merit."

In view of the law laid down by the Supreme Court and the manner in which the criteria of seniority cum merit has to be applied, it is clear that there is no illegality committed by the respondents. As per the Supreme Court, where minimum standard was prescribed for assessing the merit of the candidates and those who qualified by securing the minimum marks (here in this case 70 marks) were promoted strictly as per seniority. Thus, it was in consonance with the principle of seniority- cum-merit.

8. Here in this case also, the DPC prescribed the minimum standard marks as 70 out of 100 and as per the description made in the reply, 75 marks was allocated for assessment of appraisal and 25 marks for the interview and, therefore, there is nothing wrong committed by the respondents giving 70 marks as a minimum prescribed marks to be secured and whosoever secured that marks, considered for promotion as per their seniority.

9. Further, the Supreme Court in case of Bhagwandas Tiwari (supra) has also observed as under:-

"16. The principles of seniority-cum-merit and merit-cum- seniority are conceptually different. For the former, greater emphasis is laid in seniority, though it is not the determinative factor, while in the latter merit is the determinative factor. In The State of Mysore and Anr. v. Syed Mahamood and Ors. (AIR 1968 SC 1113), it was observed that in the background of Rule 4(3)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit, that the rule required promotion to be made by selection on the basis of "seniority subject to fitness of the

candidate to discharge the duties of the post from among persons eligible for promotion". It was pointed out that where the promotion is based on seniority- cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted. But these are not the only modes for deciding whether promotion is to be granted or not."

(emphasis supplied)

10. The Karnataka High Court in case of Mohan Pavate and others Vs. Management of Malaprabha reported in ILR 2000 KAR 1841 has also considered the criteria of seniority-cum-merit and observed that for assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee, who is eligible for consideration for promotion. The Karnataka High Court has also relied upon a decision of Supreme Court in case of B.V. Sivaiah and Others Vs. K. Addanki Babu and others [1998(6) SCC 720] and observed as under:-

"12. The criteria 'seniority-cum-merit' was the subject matter of several decisions of Apex Court. In Sivaiah's case, the Supreme Court after briefly making reference to all its earlier decisions, has crystalised the meaning of this volatile expression. In the said case, the Court has observed as under:

"18. We thus arrive at the conclusion that the criterion of 'seniority-cum-merit' in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior even though less meritorious shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee, who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit."

13. The Sivaiah's case the Supreme Court was considering the circular dated September 27, 1989, issued by a Rayalaseema

Grameena Bank, which is also a Regional Rural Bank established under Regional Rural Banks Act. In those cases, promotions were effected by the Rural Banks setting apart over 50% marks for interview and performance and promoting only those Officers, who had secured highest marks. The Apex Court while confirming the orders made by Andhra Pradesh High Court was pleased to hold:

"Promotion to the post of Area/Senior Managers in Grameena (Rural) Banks is to be made as per seniority-cum-merit rule. The promotion process laid down by the Rayalaseema Grameena Bank in its circular dated September 27, 1989, sets apart 34 marks for seniority, 10 marks for qualifications 20 marks for interview and 56 marks for performance thus out of a total number of 120 marks the maximum number of marks that could be awarded for seniority is 84 and that 0.75 mark was to be given for each completed month of service over and above the minimum qualifying service. In other words, if two persons are appointed on the same day, the same number of marks had to be awarded for seniority. Moreover, out of a total number of 120 marks more than 50% marks were set apart for interview and performance. So also only those officers who had secured the highest number of marks were ultimately promoted. Thus, it is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. The mode of selection that was in fact employed was contrary to the principle of 'seniority- cum-merit' laid down in the Rule.""

11. In view of the aforesaid, I do not find any infirmity in the decision taken by the respondents in not granting promotion to the petitioner as he failed to secure minimum cut off marks i.e. 70 marks. The petition, in my opinion, is without any substance and is accordingly dismissed.