JUDGMENT
M.R. Hariharan Nair, J.
1. The interesting question that arises in this Contempt of Court Case is whether in the preparation of select list following ‘seniority-cum-merit’ principle, the Selection Board is bound to earmark certain percentage of marks towards seniority of the respective candidates?
2. The petitioner herein was the 3rd petitioner in O.P. No. 5687/95 decided by me on 7.12.2001. His grievance is that the direction issued to the respondents in the said judgment has not been properly implemented and that only a camouflaged compliance was done in an arbitrary and illegal manner and flouting the letter and spirit of the directives given by this Court. Action against the 2nd respondent for committing contempt is therefore sought for.
3. The matter relates to promotion to the posts of Area Managers/Senior Managers which is a Scale II post in the South Malabar Gramin Bank. The grievance of the petitioners projected in the Original Petition was that the select list was not prepared in strict compliance with the principles governing ‘seniority-cum-merit’ which was the basis to be adopted. After considering the same, I found that the select list in question was prepared after the Selection Committee had interviewed all the applicants and they were assigned marks taking into account various factors including length of service, performance at the interview, past performance etc., and that ‘seniority-cum-merit’ principles were not correctly followed. It was directed, taking into account the fact that fresh interview at this distance of time would not be in the interests of justice, that the select list be revised after fixing minimum marks for selection and also taking into account the marks actually awarded at the interview and in strict compliance with the principles of ‘seniority-cum-merit’ which were also elaborated in the judgment.
4. The respondent has filed counter justifying the action taken.
5. When the matter was heard, the learned counsel for the respondent submitted that cut off mark was fixed as 45% in the meeting of the Board of Directors held on 20.3.2002 and on that basis the select list was revised. It is pointed out that the petitioner has got only 35.17% marks and hence his name was not included in the list.
6. The learned counsel for the petitioner submitted that the principles and procedure followed by the Selection Committee are erroneous. It is pointed out that unlike the previous years no marks was granted taking into account the seniority of the applicants and that if this had also been done as done in the earlier occasions including the one for preparing the list which was impugned in the Original Petition, the petitioner would have scored marks higher than the cut off marks.
7. I find no justification to find fault with the preparation of the new select list. It is true that in the earlier selections certain percentage of marks was set apart for seniority; but that was at a time when the ‘seniority-cum-merit’ principles were not strictly followed by the Selection Committee. The basic principle behind the ‘seniority-cum-merit’ principle is that promotion should be based on seniority; but subject to maintenance of the minimum required merit. If one sufficiently senior, gets the cut off marks, he would get a higher rank position in the select list over his juniors, who, by virtue of better performance, might have scored even better marks at the interview. Thus, the approach itself is based on the seniority of the applicants in the lower cadre and such being the case, there appears to be no justification for granting any further mark or consideration for seniority. That was not the position while preparing the earlier list which was impugned in the Original Petition. There, the performance in the interview was given more weight and it was therefore that some marks were set apart for seniority. Once that system based on ‘merit-cum-seniority’ is abandoned and emphasis is given on seniority ensuring that the junior will not be ranked above merely based on his performance in the interview, there is absolutely no justification for setting apart any particular percentage of marks for seniority. It is pointed out by the learned counsel for the respondent that even in the selections held in 2000 and 2001, there was no percentage of marks granted for seniority in view of the legal position aforementioned.
8. The petitioner relied on the decision in B. V. Sivaiah and Ors. v. K. Addanki Babu and Ors., ((1998) 6 SCC 720) to contend that setting apart certain percentage of marks ranging from 50 to 55% in such selections made in different Gramin Banks found approval with the Supreme Court in the aforesaid case. I have perused the said decision and I find that there was no such finding therein.
9. Para. 29 of that judgment deals with a Circular which directed 55% marks to be awarded for seniority while 25% was for past performance and 15% for the interview. There was no indication in the Circular as to how 55% percentage for seniority was to be given for eligible persons. It was therefore held that the method of selection was contrary to the principles of ‘seniority-cum-merit’ and it virtually amounts to the application of the principles of merit-cum-seniority.
10. In para. 34 the promotion made in another Bank is considered. There weightage for seniority @ one mark for each completed year of service had been allowed subject to a maximum of 15 marks. It was held that the scheme was not in consonance with ‘seniority-cum-merit’ and hence the selection was not upheld. Likewise, in para. 36 the selection made in yet another Bank was considered. There 50% was fixed as the minimum qualifying marks and only those who had obtained such marks in interview were selected for promotion. It was therefore a case where only the minimum standard was fixed for assessing the merit of the candidates. It was held that the selection was one made in accordance with the principle of ‘seniority-cum-merit’. This was notwithstanding the fact that no credit by way of certain percentage of marks was given taking into account the seniority of the applicant. What is clear from this is that while applying ‘seniority-cum-merit’, no percentage of marks need be set apart for seniority. Subject to maintenance of minimum standards, selection will be made strictly based on seniority.
In the circumstance, I do not think that there was failure to comply with the directions of this Court, let alone any wilful disobedience. There is no justification for initiating contempt action against the respondent. The petitioner, if aggrieved by the new list, is left to his own remedies, if any, available under law.
