SHRIRAM TOMAR AND ANOTHER ETC.versusPRAVEEN KUMAR JAGGI AND OTHERS

590                      [2019]REPORTS
               SUPREME COURT    6 S.C.R. 590                 [2019] 6 S.C.R.


A                 SHRIRAM TOMAR AND ANOTHER ETC.
                                        v.
                  PRAVEEN KUMAR JAGGI AND OTHERS
                       (Civil Appeal Nos. 3603-07 of 2019)
B                                APRIL 09, 2019
               [L.NAGESWARA RAO AND M.R. SHAH, JJ.]
             Service Law: Promotion – Post of Junior Management Scale
      II – Criteria for promotion – Seniority-cum-merit – Mode of selection
      based on written test, interview and assessment of performance
C
      appraisal reports for preceding five years as officer in Scale I –
      The candidates were to appear in written test comprising of two
      parts – As per the Rules, those candidates who secured minimum
      40% of marks in each part were to be called for interview – As
      regards interview and performance appraisal reports for preceding
D     five years service, under the rules, no minimum qualifying marks
      were provided – However, Selection Committee fixed bench mark of
      minimum 12 marks to be secured in the interview as well as
      performance appraisal (each) and decided that only those
      candidates who secured in all 24 marks in minimum in the interview
      as well as the performance appraisal would be considered for
E
      promotion – Accordingly, based on this criteria promotion order
      was made – Writ petitioners challenged the same on the ground that
      the three successful candidates were junior to them and since writ
      petitioners obtained more than 40% marks in the written test and
      were senior, they ought to have been promoted to the post of Scale
F     II – The promotions were also challenged on the ground 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 the interview and the performance appraisal reports
      and fixing such a benchmark would violate the principle of seniority-
      cum-merit – The Single Judge of High Court held that fixing the
G
      qualifying marks/benchmark to obtain minimum 12 marks in the
      interview and the performance appraisal was not permissible and
      it defeated the principle of seniority-cum-merit and, therefore,
      directed to prepare a fresh promotion list by prescribing the minimum
      necessary cut off merit marks out of 100 so that the rule of seniority-
H     cum-merit could be made applicable – The Division Bench, not only
                                       590
    SHRIRAM TOMAR AND ANOTHER ETC. v. PRAVEEN                               591
             KUMAR JAGGI AND OTHERS

dismissed the appeals, but also set aside the directions issued by          A
the Single Judge and directed the establishment to conduct fresh
exercise for promotion – Hence the instant appeal – Held: The
Single Judge as well as the Division Bench erred in holding that
fixing the qualifying marks to be obtained in the interview and the
performance appraisal reports would violate the principle of
                                                                            B
seniority-cum-merit – As the promotion to the post of Junior
Management Scale II is to be made on the basis of seniority-cum-
merit, the only requirement is 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         C
respectively, the candidates would be promoted in the order of
seniority, irrespective of anyone among them having obtained more
marks – In view of this, orders of Single Judge and Division Bench
of High Court are quashed and respondent-authority is directed to
prepare a fresh select list for promotion accordingly – Regional
                                                                            D
Rural Banks (Appointment and Promotion of Officers and other
Employees) Rules, 1998.
       Allowing the appeals, the Court
       HELD: The 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,            E
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 seniority-cum-merit. Further fixing the
qualifying marks in the written test, performance appraisal reports
and the interview has not violated the principle of seniority-cum-          F
merit. It is further held 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 seniority-cum-merit. The judgments and orders
passed by the single judge of High Court and Division Bench of
High Court are set aside. The authority is directed to prepare a            G
fresh select list for promotion 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                H
592             SUPREME COURT REPORTS                            [2019] 6 S.C.R.


A     those candidates be promoted in the order of seniority,
      irrespective of anyone among them having obtained more marks.
      [Paras 12, 13][600-B-G]
            Chairman, Rushikulya Gramya Bank v. Bisawamber
            Patro (2013) 4 SCC 376 : [2013] 4 SCR 239; Rajendra
B           Kumar Srivastava v. Samyut Kshetriya Gramin Bank
            (2010) 1 SCC 335 : [2009] 15 SCR 936 – relied on.
                                Case Law Reference
              [2013] 4 SCR 239             relied on                Para 7.3

C             [2009] 15 SCR 936            relied on                Para 7.4


            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.3603-
      3607 of 2019
            From the Judgment and Order dated 24.09.2008 of the High Court
D     of Judicature at Jabalpur in Writ Appeal Nos. 1508, 1509, 1510, 1511
      and 1535 of 2007.
            R. S. Hegde, Farhat Jahan Rehmani, Rajeev Singh, Advs. for the
      Appellants.

E           Kunal Verma, Mrs. Yugandhara Pawar Jha, Piyush Bhardwaj,
      M. C. Dhingra, Vishal Prasad, K. P. Prasad, Ritika Sethi, Satish Vig,
      Shiv Sagar Tiwari, Ms. Babita Jha, S. K. Dey, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J. 1. Leave granted.
F
            2. As common question of law and facts arise in this group of
      appeals, and as such they arise out of the impugned 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
G
      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
H     and directed that instead of preparing a fresh select list, the establishment
    SHRIRAM TOMAR AND ANOTHER ETC. v. PRAVEEN                                    593
       KUMAR JAGGI AND OTHERS [M. R. SHAH, J.]

would conduct the fresh exercise for promotion, and further directed             A
that the establishment would be obliged to prescribe minimum necessary
cut off merit marks out of 100 so that the rule of seniority-cum-merit 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            B
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 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               C
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%           D
by promotion and the criterion for promotion shall be on the basis of
seniority-cum-merit. 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         E
was as follows:
       Written Test                          60 marks
       Interview                             20 marks
       Performance appraisal                 20 marks                            F
       Total                                 100 marks
      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 :                                                                             G
                   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
                                                                                 H
594            SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A     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 respondent-bank for the purpose of promotion from Scale
      I to Scale II issued a memo dated 30.03.2004 and informed all the Branch
B     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 ratio of 1:4. The
C     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
D     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,
E     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
F     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, 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
G     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 seniority-cum-merit 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
H     so far as marks obtained in interview and performance appraisal reports
    SHRIRAM TOMAR AND ANOTHER ETC. v. PRAVEEN                                 595
       KUMAR JAGGI AND OTHERS [M. R. SHAH, J.]

and therefore the original writ petitioners being senior and they obtained    A
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           B
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 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.                                                                C
        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          D
also observed that the aforesaid criteria would violate the principle of
seniority-cum-merit and by such a criteria the principle of merit-cum-
seniority 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      E
100 so that the rule of seniority-cum-merit 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-
arranged and accordingly a fresh order of promotion shall be passed by        F
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
                                                                              G
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     H
596            SUPREME COURT REPORTS                          [2019] 6 S.C.R.


A     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 seniority-cum-merit is made applicable.
             6. Feeling aggrieved and dissatisfied with the impugned common
      judgment and order passed by the Division Bench of the High Court
B     dismissing the appeals and further directing to conduct the fresh exercise
      for promotion, the original appellants 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
C     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
D     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
E     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 minimum 12 marks each to obtain in the
F     oral interview as well as performance appraisal reports, the principle of
      seniority-cum-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
G     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 seniority-cum-merit basis is permissible.
            7.4 It is further submitted by the learned counsel appearing on
H     behalf of the appellants that in the case of Rajendra Kumar Srivastava
    SHRIRAM TOMAR AND ANOTHER ETC. v. PRAVEEN                                       597
       KUMAR JAGGI AND OTHERS [M. R. SHAH, J.]

v. Samyut Kshetriya Gramin Bank reported in (2010) 1 SCC 335, it                    A
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 seniority-
cum-merit.
       7.5 Making the above submissions and relying upon the above                  B
two decisions of this Court, it is vehemently submitted by the learned
counsel appearing on behalf of the appellants that in 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-cum-merit and as such the same is contrary to the            C
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      D
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                   E
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 seniority-
cum-merit.
       8. Learned advocate(s) appearing on behalf of the original writ              F
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 seniority-cum-merit has been given go
by.                                                                                 G
       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.                                              H
598             SUPREME COURT REPORTS                             [2019] 6 S.C.R.


A           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.
B            9. We have heard learned counsel for the respective parties at
      length.
             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
      seniority-cum-merit. It is true that as per the rule and as per the eligibility
C     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
D     ‘A’ and Part ‘B’. 60 marks allotted for written test are further divided
      as under:
                        Part ‘A’                   30 marks
                        Part ‘B’                   30 marks
E             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/
F     Selection Committee took a conscious decision to fix the benchmark of
      having 12 marks each out of 20 marks each in 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
G     permissible and that it would defeat the principle of seniority-cum-merit.
      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 seniority-cum-merit could be made applicable.
            10. When the aforesaid order passed by the learned Single Judge
H     was challenged before the Division Bench, the Division Bench, by the
    SHRIRAM TOMAR AND ANOTHER ETC. v. PRAVEEN                                   599
       KUMAR JAGGI AND OTHERS [M. R. SHAH, J.]

impugned judgment and order, not only dismissed the appeals, but also           A
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
                                                                                B
Judge that the select list was vitiated on account of any 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               C
the performance appraisal reports is not permissible and it would defeat
the principle of seniority-cum-merit 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             D
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            E
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 their
seniority. All candidates were promoted in the order of seniority,
irrespective of anyone among them having got marks in excess of 60%             F
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           G
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        H
600              SUPREME COURT REPORTS                        [2019] 6 S.C.R.


A     in the written test, performance appraisal reports and the interview has
      not violated the principle of seniority-cum-merit. 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).
B            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
C     and fixing such a benchmark would violate the principle of seniority-
      cum-merit. As the promotion to the post of Junior Management Scale II
      shall be made on the basis of seniority-cum-merit, 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
D     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
E     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 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
F     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.
G           14. The present appeals are allowed to the aforesaid extent. No
      order as to costs.


      Devika Gujral                                              Appeals allowed.

H