IMPORTANT POINT
In service law the principles of seniority-cum-merit and merit-cum-seniority are conceptually different as for the former greater emphasis is laid in seniority though it is not the determinative factor, while in latter merit is the determinative factor.

Headnote:SERVICE LAW—Promotion—Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988—Clause 7 of Second Schedule—In terms of policy promotion was to be made on basis of seniority-cum-merit—Order granting promotion to respondents 2 to 8—Petitioners and respondents were working as officers in Junior Management Grade I and next promotional post was Middle Management II—Bank by fixing criteria that only those employees who secured 45 marks out of 60 in respect of performance of work and interview were to be selected for promotion was alleged to have adopted the policy of “merit-cum-seniority” in place of “seniority-cum-merit”—Writ challenging promotion was dismissed by High Court —Appeal—Principle of “merit-cum-seniority” laid greater emphasis on merit and ability where as criteria of seniority-cum-merit laid great emphasis on seniority—Circular providing criteria for promotion no where referred to minimum marks being relatable to performance or interview—Criterion adopted by respondent Bank would be a case of shifting focus to merit-cum-seniority—Impugned judgment was liable to be set aside—Respondent No. 1 issue fresh orders for promotion.
       Held : 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.(Para 10)
       On the other hand, as between the principles of seniority and merit, the criterion of ‘seniority-cum-merit’ lays greater emphasis on seniority.(Para 12)
       The impugned judgment of the learned Single Judge and Division Bench of the High Court missed one basic factor. The circular nowhere refers to the minimum marks being relatable to criteria A and C and nowhere there is a stipulation of obtaining minimum 35 marks as a compulsory measure. If really the intention was to apply the said minimum marks to said criteria it would have been specifically provided that way. It is noted by the High Court that in the circular or in the 115th or 117th report of the respondent No.1-Bank there was no mention about this aspect. The doctrine of reading down the provisions has really no application to the facts of the case. If the stand of respondents is accepted, it would mean addition of a condition which is not specifically provided for. That is impermissible.(Para 15)
       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.(Para 17)
       There is no basis, in the instant case, for the stand that for assessing merit a minimum number of marks has been prescribed. The contention that minimum marks were 45 out of 60, means that an employee is to secure 75% of marks. Such a high percentage can not be a measure of prescribing minimum marks to assess merit. It obviously would be a case of shifting the focus to merit-cum-seniority. In para 37 of Sivaiah case (supra), this Court noted that minimum marks prescribed for assessing merit do not depart from the seniority-cum-merit principle. But the factual position is different here. There is no mention that 45 marks out of 60 relate to the prescription of minimum marks for assessing the merit. In Jalal Uddin’s case (supra) it was noted that in seniority-cum-merit greater emphasis is on seniority though it is not the determinative factor. In the case of merit-cum-seniority, merit becomes a determinative factor. In fact, the position noted by this Court in paragraphs 19, 20, 24 and 25 of Sivaiah case (supra) dealt with almost identical fact situation, apart from paragraph 16 of the judgment.(Para 19)
       Appellants have no grievance so far as respondents 2, 3 and 4 are concerned as their date of joining is earlier and they have secured higher marks. The appeal stands dismissed, so far as they are concerned. (Para 20)
       The appeal is bound to succeed to the extent indicated. The respondent no.1 shall issue fresh orders for promotion in line with the judgment after working out the necessary details.(Para 21)

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. Appellants call in question legality of the judgment rendered by a Division Bench of the Madhya Pradesh High Court, Indore Bench. By the impugned judgment the view taken by the learned Single Judge in Writ Petition No.799 of 2000 decided on 25.6.2001 was upheld.

3. Factual position is almost undisputed and essentially is as follows:

The aforesaid writ petition was filed by ten persons who at the relevant point of time were employees of the Dewas Shajapur Kshetriya Gramin Bank (hereinafter referred to as the ‘Bank’). Challenge in the writ petition was to the order of promotion issued by respondent No.1-Bank and to the promotion granted to respondents 2 to 8. The writ petitioners and respondents 2 to 8 were at the relevant point of time were working as officers in Junior Management Grade I. On 26.11.1999, the bank issued a promotion policy whereby applications were invited from the officers working in Junior Management Grade I for being considered to the next promotional post known as Middle Management II. In terms of the policy, the promotion was to be made on the basis of seniority-cum-merit and the policy also provided criteria for consideration of cases for promotion. The relevant clause is clause 7 of the second schedule of the Regional Rural Banks (Appointment and Promotion of Officers and others Employees) Rules, 1988 (in short the ‘Rules’). The said Rule came into operation with effect from 28.9.1988 and it was framed by the Central Government. Respondent No.1-Bank has been established under the provisions of Regional Rural Banks Act, 1976 (in short the ‘Act’). Under Section 29 of the Act the Central Government is empowered to make rules after consultation with the National Bank for carrying out the provisions of the bank. Clause (b)(a) of sub-section (2) of Section 29 was inserted by Regional Rural Bank’s (Amendment) Act, 1987 (in short the ‘Amendment Act’) empowering the Central Government to make Rules relating to the manner in which the officers and employees of Regional Rural Bank shall be appointed in exercise of power conferred under Section 29 read with Section 17 of the Act. As per Rule 5 of the Rules all vacancies are to be filled up on deputation, promotion or direct recruitment in accordance with the provisions contained in the second schedule. Clause 7 of the schedule deals with the promotion as Area Manager or Senior Managers. Clause 7 reads as follows:

“Area Managers or Senior Managers:

(a) Source of recruitmentHundred percent by promotion from amongst confirmed officers working in the bank. Promotions will be on the basis of seniority-cum-merit. If suitable officers are not available internally, these posts could be filled by taking temporarily officers of the sponsor banks and other banks or organizations on deputation.

(b) Qualifications and eligibility(i) A Graduate of recognized University or any equivalent qualifications recognized as such by Government of India, preference being given to Agriculture or Commerce or Economics graduates.

(ii) Eight years service as an officer in the regional rural bank concerned. Provided that the Board may, with the prior approval of National Bank, relax the period not exceeding two years, if suitable candidates of requisite experience are not available.

Note: The post of Area Managers and Senior Managers will be equivalent in rank and will be inter changeable.

(c) Mode of selectionInterview and assessment of performance for the preceding three years period as officer for promotion.”

Standard prescribed as per Circular is as follows:

“(7) Standard:Standard of selection in promotion procedure shall be as under:-

(a)Performance of work- Maximum 30 Marks

(work performance for the last 3 years)

(b)Period of service- Maximum 40 Marks

(2 marks per year for the completed period of service subject to maximum 40 marks)

(c)Interview- Maximum 30 Marks

Total maximum marks - 100 Marks

In order to be selected for promotion, obtaining minimum 45 mar

Click Here to Read the rest of this document

2006 Supreme(SC) 1074

IMPORTANT POINTIn service law the principles of seniority-cum-merit and merit-cum-seniority are conceptually different as for the former greater emphasis is laid in seniority though it is not the determinative factor, while in latter merit is the determinative factor.

Cases Referred (9)

IMPORTANT POINT
In service law the principles of seniority-cum-merit and merit-cum-seniority are conceptually different as for the former greater emphasis is laid in seniority though it is not the determinative factor, while in latter merit is the determinative factor.