Telangana High Court

V.V.Ramana Murthy, vs Sangameswara Grameena Bank, on 23 December, 2021

Bench: P.Madhavi Devi

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


              WRIT PETITION NO.13362 OF 2003


                             ORDER

This Writ Petition is filed by the petitioners under Article 226

of the Constitution of India seeking a Writ more particularly one in

the nature of Writ of Mandamus declaring the action of the 1st

respondent bank (1st respondent bank has since merged with A.P.

Grameena Vikas Bank) in promoting respondents 2 to 13 to the post

of Scale-I Officer under Staff Circular No.10/03-04 dt.25.06.2003 and

denying promotions to the petitioners, as illegal and opposed to the

law laid down by the Supreme Court and to issue a consequential

direction to the 1st respondent to promote the petitioners as Scale-I

Officers by setting aside the promotions given to respondents 2 to 13

with all consequential benefits and pass such other order or orders as

this Hon'ble Court may deem fit and proper in the circumstances of

the case.

2. Brief facts of the case are that the petitioners were working with

the 1st respondent bank and as per the seniority list prepared by the

bank in the staff Circular, petitioners 1 to 3 were seniors to

respondents 2 to 13. They were working in the post of Clerk-cum-

Cashier. The petitioners were shown at positions 21, 22 and 24,

whereas the 2nd respondent was shown at 23 and other respondents W.P.No.13362 of 2003

were shown from positions 25 and below. The promotion from the

post of Clerk-cum-Cashier to that of Officer Scale-I is governed by

the rules made by the Government of India known as Regional Rural

Banks (Appointment & Promotion of Officers and other Employees)

Rules, 1998 made in exercise of powers conferred under Sections 29

and 17 of the R.R.B.'s Act and the rules were published in the official

Gazette on 29.07.1998 and they have come into force from that date.

The post of Scale-I Officer was classified as Group-A post and 50%

of the same was to be filled by direct recruitment and the balance 50%

by promotion and promotions shall be made on the basis of seniority-

cum-merit. The process of selection consists of a written examination,

interview and appraisal of performance reports for the last 5 years.

The written examination is for 70 marks, the interview for 20 marks

and the performance appraisal reports will carry 10 marks. The

written examination is divided into 2 parts of 35 marks each and a

candidate has to secure 40% minimum marks in each part to come

through the written examination. There shall not be any minimum

qualifying marks in the interview.

3. In the 1st respondent bank, there were 13 vacancies of Scale-I

Officers in the relevant year and all the eligible candidates were called

for the written examination and thereafter, the petitioners appeared for

interview also after being successful in the written examination.

Thereafter, respondents 2 to 13 were promoted to the posts of Officer

Scale-I by overlooking the case of the petitioners. The list of W.P.No.13362 of 2003

promoted candidates was released by the 1st respondent on 25.06.2003

in Staff Circular No.10/03-04. Challenging the denial of promotion to

the petitioners and promoting their juniors, i.e., respondents 2 to 13,

the Writ Petition is filed.

4. Learned Senior Counsel for the petitioners, Sri Vedula Srinivas,

submitted that the rules prescribe the criteria of promotion as

seniority-cum-merit and since the petitioners though were seniors to

the respondents, they were overlooked on the ground that their juniors

were more meritorious in the written examination and interview. He

submitted that since the relevant criteria of seniority-cum-merit has

not been followed, the action of the respondent bank in promoting the

juniors to the petitioners to the post of Officers Scale-I is bad in law

and is liable to be set aside. In support of his contention that to apply

the criteria of seniority-cum-merit, unless the petitioners are found to

be not fit for promotion on merit, the seniority has to be given

importance, he placed reliance upon the latest decision of the Hon'ble

Supreme Court of India in the case of U.V. Mahadkar Vs. Subhash

Anand Chavan and others1. He further submitted that after a lapse

of so many years, some of the petitioners and most of the respondents

have also retired from service, but most of them have been

subsequently promoted; but if the seniority list is properly prepared,

(2016) 1 SCC 536 W.P.No.13362 of 2003

financial benefits they were entitled to if they were promoted, can be

given to the petitioners.

5. Sri Pasam Srinivasulu, learned counsel representing Sri

B.Y.Ravinder Reddy, learned counsel for the 1st respondent, on the

other hand, relied upon the contentions in the counter affidavit and

submitted that the petitioners though were seniors could not perform

well compared to their juniors in the written examination and

interview and therefore the juniors were promoted overlooking

seniors. He placed reliance upon a decision of the Hon'ble Supreme

Court in the case of B.V. Sivaiah Vs. K. Addanki Babu2 and the

decision of the Hon'ble Kerala High Court in O.P.Nos.3585 of 1995

and 3670 of 1995 in support of his contentions.

6. Having regard to the rival contentions and the material on

record, the undisputed facts are that petitioners 1 and 2 are seniors to

all other respondents 2 to 13 and the 3rd petitioner is senior to all

respondents 3 to 13 and that all the petitioners as well as the

respondents 2 to 13 have been successful in the written examination

and have attended the interview. It is also not in dispute that there are

no adverse remarks against the petitioners and that there is no

averment in the counter affidavit that they were found to be unfit for

promotion. Therefore, while promoting the Clerks-cum-Cashiers to

the post of Officer Scale-I, the criteria of seniority-cum-merit should

(1998) 6 SCC 720 : AIR 1998 SC 2565 W.P.No.13362 of 2003

have been considered by the bank. The Hon'ble Supreme Court in the

case of U.V. Mahadkar Vs. Subhash Anand Chavan and others (1

supra) has considered all the precedents on the issue including its

earlier case in B.V. Sivaiah Vs. K. Addanki Babu (2 supra) and has

at length examined the criteria of merit-cum-seniority versus

seniority-cum-merit and at paras 12 to 17, has held as under:

"12. It is well settled that there is a sharp distinction between "merit-cum-seniority" and "seniority-cum-merit". In the former case, the merit shall have to be given preference over the seniority. It is only when the seniormost candidate has no merit and he is not suitable to be appointed on the selection post, merely because of seniority, then the Committees have to select a meritorious candidate. The question as to the distinction between the two is no longer res integra.

13. In B.V. Sivaiah v. K. Addanki Babu [(1998) 6 SCC 720 : 1998 SCC (L&S) 1656] , while considering the principle of promotion on merit-cum-seniority and seniority-cum-merit, this Court held that the principle of merit-cum-seniority lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal.

14. The Constitution Bench of this Court in Guman Singh v. State of Rajasthan [(1971) 2 SCC 452] , was considering a question as to whether promotion based on merit, as embodied in the Rajasthan Administrative Service Rules, 1954, is violative of Articles 14 and 16 of the Constitution. This Court held that: (SCC p. 468, para 33) "33. We are unable to accept this contention. The State Government has taken a decision in 1965 that selection to the service and promotion have to be on the basis of merit and seniority-cum-merit. There can be no controversy that the main object in such matters is to serve public interest and not W.P.No.13362 of 2003

the personal interest of the members of the official group concerned. As stated by Leonard D. White in his Introduction to the Study of Public Administration, 4th Edn., p. 380: 'The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants, are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment'."

15. In Central Council for Research in Ayurveda & Siddha v. K. Santhakumari [(2001) 5 SCC 60 : 2001 SCC (L&S) 772] , this Court, considering the similar question, held: (SCC p. 63, para 6) "6. The principle of merit-cum-seniority is an approved method of selection and this Court in Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910] , held that promotion to 'selection grade posts' is not automatic on the basis of ranking in the gradation list and the promotion is primarily based on merit and not on seniority alone. At p. 1914 of the judgment, it is stated as under: (AIR para 6) '6. ... The circumstance that these posts are classed as "selection grade posts" itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the gradation list but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their contention that the ranking or position in the gradation list does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available.'"

W.P.No.13362 of 2003

16. Reference may also be made to a decision of this Court in K. Samantaray v. National Insurance Co. Ltd. [(2004) 9 SCC 286 : 2004 SCC (L&S) 864] , observed as under: (SCC pp. 289-90, para 7) "7. The principles of seniority-cum-merit and merit-cum- seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. In State of Mysore v. Syed Mahmood [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 the 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."

17. After giving our anxious consideration in the matter, we are of the definite opinion that the High Court should not have entered into the arena of the experts and to reassess the merit of the candidates when it is finally decided by a duly constituted Committee of Experts in the same field."

7. From the discussion in the above judgment, it is clear that

where the criteria for promotion is seniority-cum-merit, the seniority

has to be given preference over merit, unless the senior

officer/employee has been found to be unfit to discharge the duties of

the higher post. Thus, the seniors cannot be passed over and the W.P.No.13362 of 2003

officers junior to them cannot not be promoted. It is not the case of the

respondent bank at the time of denying the promotion to the

petitioners, nor is there any averment in the counter affidavit filed by

the respondent bank that the petitioners/seniors were unfit to

discharge the duties of higher post, i.e., Officer Scale-I. It is also

submitted by the learned counsel for the petitioners as well as the 1st

respondent that all the petitioners were promoted to the post of Officer