M.P. Janardhanan v. South Malabar Gramin Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **TUESDAY, THE 19TH DAY OF NOVEMBER 2013/28TH KARTHIKA, 1935** ## **WP(C).No. 28428 of 2009 (W)** ## **----------------------------** ## **PETITIONER :** - **--------------------** **M.P.JANARDHANAN, OFFICER SCALE I, SOUTH MALABAR GRAMIN BANK, POOKOTTUR BRANCH P.O.POOKOTTUR, MALAPPURAM DISTRICT.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT(S) :** - **----------------------------** **1. THE SOUTH MALABAR GRAMIN BANK, REPRESENTED BY ITS CHAIRMAN SOUTH MALABAR GRAMIN BANK,** **HEAD OFFICE, MALAPPURAM.** **2. THE STAFF SELECTION COMMITTEE, REPRESENTED BY THE CHAIRMAN SOUTH MALABAR GRAMIN BANK,** **HEAD OFFICE, MALAPPURAM.** **3. MURALIDHARAN C., MANAGER, SOUTH MALABAR GRAMIN BANK,** **REGIONAL OFFICE, KALPATTA WAYANAD DIST.** **4. RAMKUMAR K.V., MANAGER, SOUTH MALABAR GRAMIN BANK,** **PARAPPANAGADI BRANCH PARAPPANAGADI P.O., MALAPPURAM.** **5. BRUNO S.R., MANAGER, SOUTH MALABAR GRAMIN BANK,** **BALARAMAPURAM BRANCH BALARAMAPURAM P.O.,** **THIRUVANANTHAPURAM.** **6. RAMANI P.M., MANAGER, SOUTH MALABAR GRAMIN BANK,** **THIRUVALLA BRANCH THIRUVALLA P.O., KOTTAYAM.** **...2/-** **WP(C).No. 28428 of 2009 (W) -2-** **7. NARAYANAN K., MANAGER, SOUTH MALABAR GRAMIN BANK, PATHANAMTHITTA BRANCH PATHANAMTHITTA.** **8. BALAKRISHNAN P., MANAGER, SOUTH MALABAR GRAMIN BANK, VYTHIRI BRANCH VYTHIRI P.O., WAYANAD DIST.** **9. SUDHAKARAN P., MANAGER, SOUTH MALABAR GRAMIN BANK, PURATHOOR BRANCH P.O.PURATHOOR, MALAPPURAM.** **10. MANOJ KUMAR O., SCALE II OFFICER, SOUTH MALABAR GRAMIN BANK CREDIT WING, HEAD OFFICE, MALAPPURAM.** **R1 & R2 BY ADV. SRI.DEVAN RAMACHANDRAN, SC BY ADV. SRI.K.M.ANEESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2013, ALONG WITH WPC. 13907/2010 & CONNECTED CASES, THE COURT ON 19-11-2013 DELIVERED THE FOLLOWING:** **Mn** **...3/-** **WP(C).No. 28428 of 2009 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF THE NOTIFICATION DATED 5.3.2009. EXT.P2 COPY OF CIRCULAR NO. 133/1998 DATED 11.12.1998. EXT.P3 COPY OF LIST OF CANDIDATES QUALIFIED IN THE WRITTEN TEST FOR PROMOTION FROM OFFICE SCALE I AND II. EXT.P4 COPIES OF VARIOUS CERTIFICATES OF THE PETITIONER. EXT.P5 COPY OF THE JUDGMENT DATED 11.2.2004 IN WA NO. 1712/2000. EXT.P6 COPY OF JUDGMENT DATED 18.9.2009 IN W.A. NO. 2667/2007. EXT.P7 COPY OF SOUTH MALABAR GRAMIN BANK (OFFICERS AND EMPLOYEES) SERVICE REGULATIONS.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE Mn** A.M.SHAFFIQUE, J. ---------------------------------------------------- W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F --------------------------------------------------Dated this the 19[th] November, 2013 **J U D G M E N T** These writ petitions are filed challenging the selection conducted by the first respondent, the South Malabar Gramin Bank to the post of Officer Scale II. 2. In W.P.(C) No. 28428/2009 the select list prepared in terms of Ext.P1 notification dated 5.3.2009 is under challenge. In W.P.(C) Nos.13907/2010 and 35341/2010, the challenge is with reference to the select list prepared in terms of notification dated 30.2.2010. In W.P.(C) Nos. 5077/2011 and 12257/2011 the select list prepared in terms of notification dated 12.1.2011 is under challenge. 3. The common facts involved in the above writ petitions are as under: 4. The selection to the post of Officer Scale-II in the 'South Malabar Gramin Bank is based on the rules 2 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F prescribed under Circular No. 133/1998 dated 11.12.1998, as per which the Board of Directors of the Bank had adopted the Regional Rural Banks (Appointment and Promotion of officers and other employees) Rules 1998, (hereinafter referred as the '1998 Rules') framed by Ministry of Finance (Department of Economic Affairs) Banking Division, New Delhi as per notification No. 642(E) dated 29.7.1998. These rules were framed by Government of India in exercise of powers conferred by section 29 of the Regional Rural Banks Act, 1976 read with section 17 of the said Act. The relevant clause which deals with appointment of Scale II Officers is as shown hereunder: - “2. (a) Name of post : Scale II Officer. - (b) Classification - : Group “A” - © Source of appointment : 100% by promotion - (d) Whether promotion to : Promotion shall be made on be made on seniority the basis of seniority cum basis or seniority cum merit merit basis - (e) eligibility : Officers holding post for eight years as an officer on W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F ## 3 |||regular basis in the Regional| |---|---|---| |||Rural Bank shall be considered| |||for promotion in scale II post| |||in that bank: Provided that no| |||officer shall be considered for| |||promotion unless he has been| |||confirmed <br>in the feeder| |||grade post.| |||Provided further that the| |||Board may, with the prior| |||approval of National Bank,| |||relax the qualifying service for| |||a period not exceeding two| |||years, if eligible officers are| |||not available.| |xx||xx| |(j) Selection process for||: The selection shall be on| |promotion||the basis of performance| |||in the written test,| |||interview and Performance| |||Appraisal Reports for| |||preceding five years as per| |||the division of marks given| |||below.| |xx|xx|| |||A list of only those candidates| |||who secure a minimum of| |||40% marks in each part shall| |||be prepared and such| |||candidates shall be called for| |||interview.| |xx|xx|| |(B) Interview||: There shall be no minimum| |(20 marks)||qualifying marks for the| |||interview| W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F ## 4 © Performance : Performance Appraisal (Appraisal Reports Reports for the preceding (20 marks) five years shall be considered for the purpose of awarding marks for promotion”. 5. According to the petitioners though they were qualified as per the Rules aforesaid, they were not selected after the written test and interview. Hence the petitioners challenge the denial of promotion inter alia contending that the decision is arbitrary and illegal and in violation of the 1988 Rules framed by Government of India. 6. Counter affidavit is filed by the first respondent in all these cases inter alia contending that they have not violated any of the Rules. In all the notifications, which is the subject matter of the above cases, it was specifically indicated that the selection process which is on the basis of seniority-cum-merit will be on the basis of written test, interview and Performance Appraisal Report for the 5 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F preceding five years as per the division of marks given thereunder. It is indicated in the notification that 60 marks will be given for written test, 20 for interview and 20 for Performance Appraisal Report. The total marks is 100. The written test comprises of Part A and B, consisting of 30 marks each and the candidate should secure a minimum of 40% marks and in respect of SC/ST candidates, 35%. Such candidates who obtain the minimum marks will be called for interview. The method of giving marks for Performance Appraisal Report is also mentioned. However the notification further indicates that the Board of Directors have decided to fix the Bench mark for minimum merit for the entire selection process as 59 out of 100. Though most of the petitioners have obtained 40% marks in the written test, they could not achieve the minimum merit of 59 out of 100 marks. Hence the petitioners in W.P.(C) Nos. 35341/2010, 5077/2011, and 12257/2011 also challenges 6 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F the fixation of 59 as the minimum marks for being selected. 7. Learned counsel for the petitioners relied upon the judgment of Supreme Court in **B.V.Sivaiah** v. **Addanki Babu (1998) 6 SCC 720)** to contend that since the promotion is based on seniority-cum merit , maximum weightage has to be given to seniority and when the petitioners had the qualifying marks, fixation of a further cut-off mark was bad in law. Reference is made to paragraph 18 of the aforesaid judgment which reads as under: **18.** We thus arrive at the conclusion that the criterion of “seniority-cum-merit” in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration 7 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. 8. Further reference is made to the judgment of the Supreme Court in **Union of India v/ LT. General Rajendra Singh Kadyan (2000) 6 SCC 698)** The relevant portion in paragraph 12 reads as under: “Seniority-cum-merit” postulates the requirement of certain minimum merit or satisfying a benchmark previously fixed. Subject to fulfilling this requirement the promotion is based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. Merit-cumsuitability with due regard to seniority as prescribed in the case of promotion to All-India Services necessarily involves assessment of comparative merit of all eligible candidates, and selecting the best out of them.” 8 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F 9. Further reference is made to the judgment of the Supreme Court in **Harigovind Yadav** v. **Rewa Sidhi Gramin Bank** ( 2006) 6 SCC 145). The relevant portion of para 22 reads as under: **“22.** Interviews can be held and assessment of performance can be made by the Bank in connection with promotions. But that can be only to assess the minimum necessary merit. But where the procedure adopted does not provide the minimum standard for promotion, but only the minimum standard for interview and does the selection with reference to comparative marks, it is contrary to the rule of “seniority-cum-merit”. This aspect of the matter has been completely lost sight of by the learned Single Judge and the Division Bench of the High Court in this round of litigation. As noticed above, they have proceeded on the basis that the appellant having failed to secure the minimum marks prescribed for interview, was rightly denied promotion, by ignoring the principle laid down by this Court in _Sivaiah_ in regard to seniority-cum-merit. At all events, as the promotion policy adopted by the Bank was held to be illegal in the earlier round of litigation (WP No. 9 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F 4485 of 1993 dated 13-10-1988), the Bank could not have adopted the same policy to again reject the appellant for promotion. We may also note that the law laid down in _Sivaiah_ was reiterated in _Sher Singh_ v. _Surinder Kumar_ wherein this Court had occasion to consider a similar question relating to the promotion for the post of clerk to Field Supervisor in the case of another Gramin Bank. This Court held that as the criterion for making promotion from the post of clerk to that of Field Supervisor was seniority-cum-merit but the Bank did not follow the criterion of seniority-cum-merit but made promotions on the basis of merit-cumseniority, the promotion was vitiated and therefore invalid. 10. Reference is also made to a Division Bench judgment of this Court in **Sree Sankaracharya University of Sanskrit** v. **State** (1996 (2) KLT 378) to contend that a selection committee constituted not in terms with the statute is illegal and without jurisdiction. A Full Bench judgment of this court in **Sourabh Jain** v. **State of Kerala** (2011 (1) KLT 888 (F.B) is relied upon to 10 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F contend that though the petitioners have participated in the selection process they are entitled to challenge the validity of the selection when there is violation of their fundamental rights. Para 13 and 14 of the said judgment are relevant which reads as under: " Again in _**Olga Tellis and others** v._ _**Bombay Municipal Corporation & Ors** ._ (AIR 1986 SC 180) a Constitution Bench of the Supreme Court considered the question of estoppel and waiver in the contest of the fundamental rights. Paras.29 and 30 of the said judgment read as follows: “29. The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure _bona fides_ in day-to-day transactions. In _Basheshar Nath v. C.I.T.,_ a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das, C.J. and Kapoor, J.) held that there can be no waiver of the fundamental right founded on Art.14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there be no waiver of the right conferred by Art.14, but there could be no waiver of any other fundamental right guaranteed by Part III of the W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F 11 Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy. 30. We must, therefore, reject the preliminary objection and proceed to consider the validity of the petitioners' contentions on merits.” It can be seen from the above extract that the Supreme Court took note of the fact that the two Judges of the court in deciding _Basheshar Nath's case_ (supra) opined that the right under Art.14 could not be waived, another two Judges held that not only the fundamental right under Art.14, but any other fundamental right guaranteed under Part III of the Constitution could also not be waived. 14. In _Olga Tellis' case_ the Supreme Court was considering the fundamental rights [under Arts. 21 and 19(1)(e)] of the pavement/slum dwellers. In the process, it had to examine a preliminary objection raised by the respondents therein that the pavement dwellers are “estopped from contending that their huts cannot be demolished by reason of the fundamental rights claimed by them” in view of an undertaking given on their behalf before the Bombay High Court on an earlier occasion. The Supreme Court rejected the preliminary objection holding that: 12 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F “It is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. There can be no estoppel against the Constitution”. 15. Therefore, we are of the opinion that estoppel is not a defence available to the State when its action is challenged on the ground of violation of any fundamental right or the provisions of the Constitution". 11. On the other hand learned counsel for the respondent also relied upon Sivaiah's case (supra) especially para 37 which read as under: **“37.** During the course of hearing of the appeal, the learned counsel for the respondent-Bank has placed before us the relevant documents relating to the impugned selection and promotion. On a perusal of the said documents, we find that 50 marks out of the total of 100 marks were prescribed as the minimum qualifying marks for interview and only those who had obtained the qualifying marks in interview were selected for promotion on the basis of seniority. It 13 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F was, therefore, a case where a minimum standard was prescribed for assessing the merit of the candidates and those who fulfilled the said minimum standard were selected for promotion on the basis of seniority. In the circumstances, it cannot be said that the selection has not been made in accordance with the principle of “seniority-cum-merit”. We are, therefore, unable to uphold the impugned judgment of the High Court. The appeal has to be allowed and the impugned judgment of the High Court dated 7-2-1997 passed by the learned Single Judge of the High Court has to be set aside and the promotion of the appellant on the post of Area/Senior Manager under order dated 8-4-1993 has to be affirmed.” 12. It is contended that fixing of minimum marks for the selection process is a method accepted by the Supreme Court. Further reference is made to **K.M. Reshmi Mishra** v. **M.P. PSC** (2006) 12 SCC 724). Para 28 is relevant 14 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F ## which reads as under: **“28.** The post of Assistant Registrar in the universities was not of such nature which would answer the requirements of the tests laid down by this Court at certain times. The post requires no professional experience. What was required to be seen was academic qualification, experience and other abilities of the candidate. Whereas the ability of communication and other skills may have to be judged through interview, experience of the candidate as also the marks obtained by him in the written examination could not have been ignored. It is not that the Commission was not called upon to hold a written examination. The Rules enabled the Commission to do so. Such a written examination in fact was held. However, the same was held only for the purpose of shortlisting the candidates and not for any other purpose. It was not a fair exercise of power. The marks obtained by the candidates in the said written examination should have been taken into consideration. Evidently, the Commission did not do so. For the reasons stated hereinbefore, we would direct the State of Madhya Pradesh therefor to consider the desirability of amending the Rules suitably so that such charges of favouritism or 15 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F nepotism by the members of the constitutional authority in future are not called in question”. ## 13. Another judgment relied is **Rajendra Kumar** ## **Srivastava** v. **Samyut Kshetriya Gramin Bank** (2010) 1 SCC 335). Paragraph 21 is relevant which reads as under: **“21.** It would thus be seen that the schemes for assessing minimum necessary marks are completely different in the two cases. While work performance carried only 30 marks in _Bhagwandas case_ , it carried 60 marks in this case. While period of service carried 40 marks in _Bhagwandas case_ , no marks are provided for “period of service” in this case. While the marks for interview were 30 in _Bhagwandas case_ , it is 40 in this case. The minimum qualifying marks was 78 out of 100 in this case. In _Bhagwandas_ , the minimum qualifying marks prescribed was 45 marks out of 100. But ignoring the requirement of 45 out of 100, the Selection Committee adopted a minimum of 45 out of 60 (that is, aggregate of marks for work performance and interview only) ignoring the marks of 40 for period of service though that was the highest segment. This Court was persuaded to interfere in that case, as the guidelines which 16 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F prescribed the minimum qualifying marks as 45 out of 100 was ignored and the Committee changed the minimum qualifying marks to 45 out of 60, thereby ignoring the marks secured for the period of service. Thus, the decision in _Bhagwandas Tiwari_ will not assist the appellants. 14. The short question to be considered in the above writ petitions is whether prescribing a minimum marks for the written test, interview and appraisal,would amount to violation of the 1988 Rules or is it in violation of Article 14 of the Constitution of India. A bare perusal of the 1988 Rules would indicate that no cut-off marks is fixed for the purpose of selecting a candidate whereas qualifying marks had been prescribed for the written test which is 40% of the 60 marks. Thereafter 20 marks is given for interview which does not have any qualifying marks and 20 marks for the work appraisal. But the first respondent has indicated in the notice inviting application that the candidate should get a total of 59 marks out of 100. It is 17 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F not in dispute that the Rules does not provide for fixing such a minimum marks. But the issue is covered by various judgments of the Supreme Court and according to me the judgment in **Rajendra Kumar Srivasthava's** case covers the issue. That was also a case relating to promotion by seniority- cum- merit. Even though the rules did not provide for any specific criteria, the Supreme Court accepted the fact that prescribing minimum qualifying marks as 78 out of 100 was valid. Different criteria can be adopted for different cadres depending upon the nature of work that the promotee will have to perform. It is purely a matter within the discretion of the management. When the Supreme Court had accepted such a principle in various judgments, I do not think that the Bank had committed any illegality in prescribing certain minimum marks for being promoted to the post of Scale II Officers. 18 W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F 15. The respondents had taken a contention that the petitioners are estopped from challenging the selection list after having known about the minimum marks prescribed as 59/100. But as argued by the learned counsel appearing for the petitioners on the basis of the judgment of this Court in **Sourabh Jain's** case, if there is violation of any of the fundamental rights of the petitioners, definitely it is open for them to challenge the selection process. In the present case all the petitioners were aware of the fixation of 59 marks and all of them participated in the selection process fully knowing about the said minimum marks. The action of the first respondent in fixing minimum marks is not held to be arbitrary or illegal. Therefore it cannot be stated that there was violation of any of the fundamental rights of the petitioners. Viewed in that angle also, the writ petitions should fail. W.P.(C) Nos. 28428/2009-W, 13907/2010-K,35341/2010-P 5077/2011-H,12257/2011-F **==> picture [13 x 10] intentionally omitted <==** 16. Under these circumstance, I am of the view that the petitioners have not made out sufficient grounds to interfere with the selection process or the select list prepared by the first respondent Bank. Accordingly these writ petitions are dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE** rka /true copy/