{"id":5420,"date":"2006-11-08T00:00:00","date_gmt":"2006-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagwandas-tiwari-ors-vs-dewas-shajapur-kshetriya-gramin-on-8-november-2006"},"modified":"2016-12-20T00:33:25","modified_gmt":"2016-12-19T19:03:25","slug":"bhagwandas-tiwari-ors-vs-dewas-shajapur-kshetriya-gramin-on-8-november-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagwandas-tiwari-ors-vs-dewas-shajapur-kshetriya-gramin-on-8-november-2006","title":{"rendered":"Bhagwandas Tiwari & Ors vs Dewas Shajapur Kshetriya Gramin … on 8 November, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhagwandas Tiwari & Ors vs Dewas Shajapur Kshetriya Gramin … on 8 November, 2006<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, Lokeshwar Singh Panta<\/div>\n
           CASE NO.:\nAppeal (civil)  4722 of 2006\n\nPETITIONER:\nBhagwandas Tiwari & Ors.\n\nRESPONDENT:\nDewas Shajapur Kshetriya Gramin Bank  & Ors.\n\nDATE OF JUDGMENT: 08\/11\/2006\n\nBENCH:\nARIJIT PASAYAT & LOKESHWAR SINGH PANTA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of S.L.P. (C) No. 6780 of 2004<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tAppellants call in question legality of the judgment
\nrendered by a Division Bench of the Madhya Pradesh High
\nCourt, Indore Bench. By the impugned judgment the view
\ntaken by the learned Single Judge in Writ Petition No.799 of
\n2000 decided on 25.6.2001 was upheld.\n<\/p>\n
\tFactual position is almost undisputed and essentially is
\nas follows:\n<\/p>\n
\tThe aforesaid writ petition was filed by ten persons who
\nat the relevant point of time were employees of the Dewas
\nShajapur Kshetriya Gramin Bank (hereinafter referred to as
\nthe ‘Bank’).  Challenge in the writ petition was to the order of
\npromotion issued by respondent No.1-Bank and to the
\npromotion granted to respondents 2 to 8.  The writ petitioners
\nand respondents 2 to 8 were at the relevant point of time were
\nworking as officers in Junior Management Grade I.  On
\n26.11.1999, the bank issued a promotion policy whereby
\napplications were invited from the officers working in Junior
\nManagement Grade I for being considered to the next
\npromotional post known as Middle Management II.  In terms of
\nthe policy, the promotion was to be made on the basis of
\nseniority-cum-merit and the policy also provided criteria for
\nconsideration of cases for promotion. The relevant clause is
\nclause 7 of the second schedule of the Regional Rural Banks
\n(Appointment and Promotion of Officers and others Employees)
\nRules, 1988 (in short the ‘Rules’).  The said Rule came into
\noperation with effect from 28.9.1988 and it was framed by the
\nCentral Government. Respondent No.1-Bank has been
\nestablished under the provisions of Regional Rural Banks Act,
\n1976 (in short the ‘Act’). Under Section 29 of the Act the
\nCentral Government is empowered to make rules after
\nconsultation with the National Bank for carrying out the
\nprovisions of the bank. Clause (b)(a) of sub-section (2) of
\nSection 29 was inserted by Regional Rural Bank’s
\n(Amendment) Act, 1987 (in short the ‘Amendment Act’)
\nempowering the Central Government to make Rules relating to
\nthe manner in which the officers and employees of Regional
\nRural Bank shall be appointed in exercise of power conferred
\nunder Section 29 read with Section 17 of the Act.  As per Rule
\n5 of the Rules all vacancies are to be filled up on deputation,
\npromotion or direct recruitment in accordance with the
\nprovisions contained in the second schedule.  Clause 7 of the
\nschedule deals with the promotion as Area Manager or Senior
\nManagers.  Clause 7 reads as follows:\n<\/p>\n
“Area Managers or Senior Managers:\n<\/p>\n
(a) Source of recruitment
\nHundred percent by promotion
\nfrom amongst confirmed officers
\nworking in the bank.\n<\/p>\n
Promotions will be on the basis
\nof seniority-cum-merit.  If
\nsuitable officers are not
\navailable internally, these posts
\ncould be filled by taking
\ntemporarily officers of the
\nsponsor banks and other banks
\nor organizations on deputation.\n<\/p>\n
(b) Qualifications and eligibility\n<\/p>\n
(i) A Graduate of recognized
\nUniversity or any equivalent
\nqualifications recognized as
\nsuch by Government of India,
\npreference being given to
\nAgriculture or Commerce or
\nEconomics graduates.\n<\/p>\n
(ii) Eight years service as an
\nofficer in the regional rural bank
\nconcerned.  Provided that the
\nBoard may, with the prior
\napproval of National Bank, relax
\nthe period not exceeding two
\nyears, if suitable candidates of
\nrequisite experience are not
\navailable.\n<\/p>\n
Note: The post of Area Managers
\nand Senior Managers will be
\nequivalent in rank and will be
\ninter changeable.\n<\/p>\n
(c) Mode of selection
\nInterview and assessment of
\nperformance for the preceding
\nthree years period as officer for
\npromotion.”\n<\/p>\n
\tStandard prescribed as per Circular is as follows:\n<\/p>\n
“(7) Standard:\tStandard of selection in promotion procedure shall be
\nas under:-\n<\/p>\n
(a) Performance of work \t\t-Maximum 30 Marks
\n(work performance for the
\nlast 3 years)<\/p>\n
(b) Period of service\t\t-Maximum 40 Marks
\n(2 marks per year for the
\ncompleted period of service
\nsubject to maximum 40 marks)<\/p>\n
(c) Interview\t\t\t\t-Maximum 30 Marks<\/p>\n
\t\t\t\t\t\t\t_______________<\/p>\n
\t\tTotal maximum marks \t–\t  100 Marks
\n\t\t\t\t\t\t\t_______________<\/p>\n
In order to be selected for promotion, obtaining minimum 45 marks shall
\nbe compulsory.”\n<\/p>\n
\tGrievance of the writ petitioners was that the principle of
\npromotion on the basis of seniority-cum-merit was given a go-
\nby and the respondent No.1-bank adopted the policy of merit-
\ncum-seniority by fixing criteria that only those employees who
\nhave secured 45 marks out of 60 in respect of criterion A and
\nC i.e. Performance of work and interview shall be selected for
\npromotion.\n<\/p>\n
\tAccording to the appellants there was no such
\nrequirement in the Circular and only requirement was
\nobtaining minimum 45 marks in order to be selected for
\npromotion. By prescribing minimum of 45 marks out of 60,
\nbasis shifted from seniority-cum-merit to merit-cum-seniority.\n<\/p>\n
\tLearned Single Judge did not accept this contention and
\ndismissed the writ petition. It was held that in view what has
\nbeen stated by this Court in B.V. Sivaiah and Ors. v. K.
\nAddanki Babu and Ors.<\/a> (1998 (6) SCC 720), the stand adopted
\nby the bank was in order. Reference was made to paragraphs
\n16, 18 and 37 of B.V. Sivaiah case (supra) to hold that
\ncriterion of seniority-cum-merit was really applied.  While
\napplying the said criterion, seniority alone is not to be
\nconsidered, and merit cannot be ignored.  A reference was also
\nmade to the decision in Jagathigowda, C.N. v. Chairman,
\nCauvery Gramina Bank<\/a> (1996 (9) SCC 677).\n<\/p>\n
\tThe Division Bench upheld the judgment of learned
\nSingle Judge by observing that the doctrine has been rightly
\napplied in the present case. Though there was no mention in
\nthe Circular that the employee has to secure more than 45
\nmarks out of 60, that appears to be the intention.\n<\/p>\n
Stand of the appellants before the High Court was
\nreiterated at the time of hearing of this appeal.\n<\/p>\n
 Learned counsel for the respondents on the other hand
\nsubmitted that there was no departure from the criterion of
\nseniority-cum-merit. A candidate was required to obtain 45
\nmarks out of 60 because there was no question of obtaining
\nmarks so far as service is concerned, that was only a
\nconclusion.\n<\/p>\n
The principle of “merit-cum-seniority” lays greater
\nemphasis on merit and ability and seniority plays a less
\nsignificant role. Seniority is to be given weight only when merit
\nand ability are approximately equal. In the context of Rule 5(2)
\nof the Indian Administrative Service\/Indian Police Service
\n(Appointment by Promotion) Regulations, 1955 which
\nprescribed that “selection for inclusion in such list shall be
\nbased on merit and suitability in all respects with due regard
\nto seniority” Mathew J. in Union of India v. Mohan Lal Capoor
\nand Ors.<\/a> (1973 (2) SCC 836), has said:-
\n“For inclusion in the list, merit and
\nsuitability in all respects should be the
\ngoverning consideration and that seniority
\nshould play a secondary role. It is only when
\nmerit and suitability are roughly equal that
\nseniority will be a determining factor, or if it is
\nnot fairly possible to make an assessment
\ninter se of the merit and suitability of two
\neligible candidates and come to a firm
\nconclusion, seniority would till the scale”.\n<\/p>\n
Similarly, Beg J. (as the learned Chief Justice then was) has
\nsaid (SCC p.851, para 22):\n<\/p>\n
“22.\tThus, we think that the correct view, in
\nconformity with the plain meaning of words
\nused in the relevant rules, is that the
\nentrance” or “inclusion” test, for a place on
\nthe select list, is competitive and comparative
\napplied to all eligible candidates and not
\nminimal like pass marks it an examination.
\nThe Selection Committee has an unrestricted
\nchoice of the best available talent, from
\namongst eligible candidates, determined by
\nreference a reasonable criteria applied in
\nassessing the facts revealed by service records
\nof all eligible candidates so that merit and not
\nhere seniority is the governing factor.”\n<\/p>\n
On the other hand, as between the principles of seniority
\nand merit, the criterion of ‘seniority-cum-merit’ lays greater
\nemphasis on seniority. In State of Mysore and Anr. v. Syed
\nMahmood and Ors.<\/a> (1968 (3) SCR 363), while considering Rule\n<\/p>\n
(a)(b) of the Mysore State Civil Services General Recruitment
\nRules, 1957 which required promotion to be made by selection
\non the basis of seniority-cum-merit, this Court has observed
\nthat the rule required promotion to be made by selection on
\nthe basis of “seniority subject to the fitness of candidate to
\ndischarge the duties of post from among persons eligible for
\npromotion”. It was pointed out that where promotion is based
\non seniority-cum-merit, the officer cannot claim promotion as
\na matter of right by virtue of his seniority alone and if he is
\nfound unfit to discharge the duties of the higher post, he may
\nbe passed over and an officer junior to him may be promoted.
\nIn State of Kerala and Anr. v. N.M. Thomas and Ors.<\/a>
\n(1976 (2) SCC 310), A.N. Ray, C.J. has thus explained the
\ncriterion of “seniority-cum-merit” (SCC p.335, para 38):-
\n“With regard to promotion the normal
\nprinciples are either merit-cum-seniority or
\nseniority-cum-merit. Seniority-cum-merit
\nmeans that given the minimum necessary
\nmerit requisite for efficiency of administration,
\nthe senior though the less meritorious shall
\nhave priority.”\n<\/p>\n
\tThe above position was highlighted in Sivaiah case
\n(supra).  At para 18 of the said judgment it was noted as
\nfollows:-\n<\/p>\n
“We thus arrive at the conclusion that the
\ncriterion of “seniority-cum-merit” in the
\nmatter of promotion postulates that given the
\nminimum necessary merit requisite for
\nefficiency of administration, the senior, even
\nthough less meritorious, shall have priority
\nand a comparative assessment of merit is not
\nrequired to be made.  For assessing the
\nminimum necessary merit, the competent
\nauthority can lay down the minimum
\nstandard that is required and also prescribe
\nthe mode of assessment of merit of the
\nemployee who is eligible for consideration for
\npromotion.  Such assessment can be made by
\nassigning marks on the basis of appraisal of
\nperformance on the basis of service record
\nand interview and prescribing the minimum
\nmarks which would entitle a person to be
\npromoted on the basis of seniority-cum-
\nmerit.”\n<\/p>\n
\tThe impugned judgment of the learned Single Judge and
\nDivision Bench of the High Court missed one basic factor. The
\ncircular nowhere refers to the minimum marks being relatable
\nto criteria A and C and nowhere there is a stipulation of
\nobtaining minimum 35 marks as a compulsory measure. If
\nreally the intention was to apply the said minimum marks to
\nsaid criteria it would have been specifically provided that way.
\nIt is noted by the High Court that in the circular or in the
\n115th or 117th report of the respondent No.1-Bank there was
\nno mention about this aspect.  The doctrine of reading down
\nthe provisions has really no application to the facts of the
\ncase.  If the stand of respondents is accepted, it would mean
\naddition of a condition which is not specifically provided for.
\nThat is impermissible.\n<\/p>\n
In all services, whether public or private there is
\ninvariably a hierarchy of posts comprising of higher posts and
\nlower posts.  Promotion, as understood under the service law
\njurisprudence, is advancement in rank, grade or both and no
\nemployee has right to be promoted, but has a right to be
\nconsidered for promotion.  The following observations in Sant
\nRam Sharma v. State of Rajasthan and Ors. (AIR 1967 SC
\n1910) are significant:\n<\/p>\n
“The question of a proper promotion policy
\ndepends on various conflicting factors.  It is
\nobvious that the only method in which
\nabsolute objectivity can be ensured is for all
\npromotions to be made entirely on grounds of
\nseniority.  That means that if a post falls
\nvacant it is filled by the person who has
\nserved longest in the post immediately below.
\nBut the trouble with the seniority system is
\nthat it is so objective that it fails to take any
\naccount of personal merit.  As a system it is
\nfair to every official except the best ones; an
\nofficial has nothing to win or lose provided he
\ndoes not actually become so inefficient that
\ndisciplinary action has to be taken against
\nhim.  But, though the system is fair to the
\nofficials concerned, it is a heavy burden on
\nthe public and a great strain on the efficient
\nhandling of public business.  The problem,
\ntherefore, is how to ensure reasonable
\nprospect of advancement to all officials and at
\nthe same time to protect the public interest in
\nhaving posts filled by the most able man?  In
\nother words, the question is how to find a
\ncorrect balance between seniority and merit in
\na proper promotion-policy.”\n<\/p>\n
\tThe principles of seniority-cum-merit and merit-cum-
\nseniority are conceptually different.  For the former, greater
\nemphasis is laid in seniority, though it is not the determinative
\nfactor, while in the latter merit is the determinative factor.  In
\nThe State of Mysore and Anr. v. Syed Mahamood and Ors. (AIR<\/a>
\n1968 SC 1113), it was observed that in the background of Rule
\n4(3)(b) of the Mysore State Civil Services (General Recruitment)
\nRules, 1957 which required promotion to be made by selection
\non the basis of seniority-cum-merit, that the rule required
\npromotion to be made by selection on the basis of “seniority
\nsubject to fitness of the candidate to discharge the duties of
\nthe post from among persons eligible for promotion”. It was
\npointed out that where the promotion is based on seniority-
\ncum-merit the officer cannot claim promotion as a matter of
\nright by virtue of his seniority alone and if he is found unfit to
\ndischarge the duties of the higher post, he may be passed over
\nand an officer junior to him may be promoted. But these are
\nnot the only modes for deciding whether promotion is to be
\ngranted or not.\n<\/p>\n
\tThese aspects were highlighted in K. Samantaray v.
\nNational Insurance Co. Ltd. (AIR<\/a> 2003 SC 4422), and in State
\nof U.P. v. Jalal Uddin and others<\/a>  (2005 (1) SCC 169).\n<\/p>\n
\tThere is no basis, in the instant case, for the stand that
\nfor assessing merit a minimum number of marks has been
\nprescribed. The contention that minimum marks were 45 out
\nof 60, means that an employee is to secure 75% of marks.
\nSuch a high percentage can not be a measure of prescribing
\nminimum marks to assess merit. It obviously would be a case
\nof shifting the focus to merit-cum-seniority. In para 37 of
\nSivaiah case (supra), this Court noted that minimum marks
\nprescribed for assessing merit do not depart from the
\nseniority-cum-merit principle. But the factual position is
\ndifferent here.  There is no mention that 45 marks out of 60
\nrelate to the prescription of minimum marks for assessing the
\nmerit. In Jalal Uddin’s case (supra) it was noted that in
\nseniority-cum-merit greater emphasis is on seniority though it
\nis not the determinative factor. In the case of merit-cum-
\nseniority, merit becomes a determinative factor.  In fact, the
\nposition noted by this Court in paragraphs 19, 20, 24 and 25
\nof Sivaiah case (supra) dealt with almost identical fact
\nsituation, apart from paragraph 16 of the judgment.\n<\/p>\n
\tAppellants have no grievance so far as respondents 2, 3
\nand 4 are concerned as their date of joining is earlier and they
\nhave secured higher marks.  The appeal stands dismissed, so
\nfar as they are concerned.\n<\/p>\n
\tThe appeal is bound to succeed to the extent indicated.
\nThe respondent no.1 shall issue fresh orders for promotion in
\nline with the judgment after working out the necessary details.
\nThere will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhagwandas Tiwari & Ors vs Dewas Shajapur Kshetriya Gramin … on 8 November, 2006 Author: A Pasayat Bench: Arijit Pasayat, Lokeshwar Singh Panta CASE NO.: Appeal (civil) 4722 of 2006 PETITIONER: Bhagwandas Tiwari & Ors. RESPONDENT: Dewas Shajapur Kshetriya Gramin Bank & Ors. DATE OF JUDGMENT: 08\/11\/2006 BENCH: ARIJIT PASAYAT & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-5420","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhagwandas Tiwari & Ors vs Dewas Shajapur Kshetriya Gramin ... on 8 November, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhagwandas-tiwari-ors-vs-dewas-shajapur-kshetriya-gramin-on-8-november-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagwandas Tiwari & Ors vs Dewas Shajapur Kshetriya Gramin ... on 8 November, 2006 - 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