Judgment:
A.S. Naidu, J.
1. The Petitioners are the employees of Cuttack Gramya Bank, in short, 'Bank', a statutory body constituted under the Regional Rural Banks Act, 1976. The dispute relates to their promotions to the post of Field Supervisor.
2. Sworn of unnecessary details, it would be trite to state the facts in brief so as to appreciate the inter-se disputes.
Admittedly, the Petitioners after facing rigorous recruitment test were appointed in the Bank as Junior Clerks in the year 1981. On 20.6.1983 they were promoted to the post of Senior Clerk-cum-Cashier. In the year 1982-83, sixty posts of Field Supervisor fell vacant. Out of the said posts, the Bank authorities considering their financial position, took a decision to fill up the said posts, phase-wise. Consequently, in the year 1983, 27 eligible employees, who were working as Senior Clerk-cum-Cashier of the Bank, were promoted to the post of Field Supervisors. Similarly, in the year 1984 six more Senior Clerk-cum-Cashiers were also promoted to the post of Field Supervisors. In the year 1985- an interview was conducted among the eligible confirmed Senior Clerk-cum-Cashiers working in the Bank for the purpose of promoting them to the vacant post of Field Supervisors. In the said interview, 46 candidates were selected & promoted in February, 1985 & April, 1985 respectively. The process of promotion to fill up 19 posts of Field Supervisors was once again taken up in the year 1990. Eleven Senior Clerk-cum-Cashiers out of the general category & eight belonging to S.C. & S.T. category were found eligible for promotion by the Board in the meeting held on 20.2.1990 (Annexure-6). According to Mr. Mohapatra, though the Petitioners were eligible & otherwise satisfied all the criterias, intentionally & out of malice, they were not promoted, consequently great harassment is caused to them. The action of not promoting the Petitioners to the post of Field Supervisors according to Mr. Mohapatra is tainted with malafide. Being aggrieved, the Petitioners filed a representation before the Chairman of the Bank praying to promote them to the post of Field Supervisors on 4.4.1990. As no action was taken, they filed a subsequent representation, which was rejected by Order Dated 17.6.1994. Being aggrieved, the Petitioner filed an appeal before the Board of Directors on 23.12.1994, the said appeal having been rejected by Order Dated 5.7.1995, the Petitioners have approached this Court.
3. According to Mr. Mohapatra, Learned Counsel for the Petitioners, the authorities did not consider the case of the Petitioners in the year 1985 though the case of their juniors was considered & they were promoted. Similarly in the year 1990 also, they were found eligible & their names found place in the select list at SI. No. 12 to 16, but then with an avowed & oblique motive of depriving them from promotion, the Bank authorities promoted the candidates whose names find place at SI. No. 11 & did not accord promotion to the Petitioners. Such action not only amounts to discrimination, but also is a clear example of malice.
4. After receiving notice, counter affidavit has been filed on behalf of the Opp. Parties disputing the averments made in the writ application mainly on the ground that the claim for promotion from 1985 to 1988 respectively by afflux of time has become stale & barred by limitation. According to the Opposite Parties, the Petitioners were appointed to the post of Junior Clerk-cum-Cashier in the year 1981 & they were duly promoted to the post of Senior Clerk-cum-Cashier in the year 1983. During 1982-83 steps were taken to fill up 64 posts of Field Supervisors by direct recruitment & thereafter 27 posts of Field Supervisors were filled up in the year 1983 by promoting the eligible Senior Clerk-cum-Cashiers. Once again in 1984 six Nos. of posts were filled up by promoting the eligible Senior Clerk-cum- Cashiers. While matter stood thus, in the year 1985, 46 promotional posts were required to be filled up & considering the stringent financial condition of the Bank, the Board decided to fill up the said posts in two batches. Consequently, 29 candidates were promoted in December, 1985 & 17 were promoted in April, 1985. In paragraph 8 of the counter affidavit, it is stated that in the year 1985 both the Petitioner Nos. 4 & 5 were considered for promotion, but then they were found unfit. It is further stated that so far as Petitioner Nos. 1 to 3 are concerned, they were not eligible in the year 1985 & hence their cases could not be considered. Even otherwise, according to the Opposite Parties, the Petitioners having not assailed the promotion, which took place in the year 1985, they are not entitled to assail the same after a decade. Such claim according to the Opp. Parties has become stale & barred by limitation. It is further submitted that in the year 1990 the Board took a decision to fill up 19 posts of Field Supervisors by promotion & out of them, 11 were decided to be filled up from general category & 9 from S.C category. Adopting the principle of seniority-cum-merit, a list of Senior Clerk-cum-Cashiers, who were otherwise eligible for promotion, was prepared. In the said list, the names of the Petitioners found place at SI. Nos. 12 to 16. In view of the decision, the candidates, whose names found place at SI. Nos. 1 to 11 were promoted & so also eight S.C candidates, who were found suitable & as such, no illegality or irregularity has been committed by the Opp. Parties. The allegation of malice is also strongly denied & alleged to be out of frustration.
5. Heard Learned Counsel for the parties at length. Perused the pleadings as well as the documents annexed thereto. There is no dispute that the Petitioners were promoted to the post of Senior Clerk-cum- Cashier in the year 1983. According to the guidelines of the Bank, which is annexed as Annexure-3 to the writ application, recruitment to 50% of the posts of Field Supervisors were to be made by direct recruitment from open market & balance 50% posts was required to be filled up by promotion from amongst the Senior Clerk-cum-Cashiers, on the basis of seniority-cum-merit. For becoming -eligible for promotion, a Senior Clerk-cum-Cashier should have minimum four years of service in the said post or 6 years of service as Junior Clerk- cum-cashier. The recruitment process for promotion to the post of Field Supervisor admittedly commenced in the year 1995. By then, the Petitioners except Petitioner Nos. 4 & 5 did not satisfy the eligibility criterias inasmuch as they had not completed 6 years of service as Junior Clerk. Thus, rightly they were not considered for promotion. Even otherwise, the said promotion was accorded way back in the year 1985. The said order was not assailed by the Petitioners at any stage. Consequently, the present claim so far as promotion to the post of Field Supervisor, which took place in the year 1985 has become stale & is grossly barred by time.
6. The only other point, which needs to be considered, is whether not granting promotion to the Petitioners in the year 1990 was justified? According to the Recruitment Rules, promotion is to be accorded adhering to the provisions of seniority-cum-merit. ''Seniority-cum-merit' means that, given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority. (See: State of Kerala and Anr. v. N.M. Thomas and Ors. : AIR 1976 SC 490). In the case of Govinda Ram Purohit and Anr. v. Jagjiwan Chandra and Ors. 1999 SCC (L & S), 788, it was observed by the Supreme Court that seniority should be given weightage without compromising with the merit as the candidate had to possess the minimum requisite merit.
7. The list of selected candidates approved in the meeting of the Board held on 22.2.1990 (Annexure-6) reveals that 16 Senior Clerk- cum-Cashiers were selected for the purpose of promotion to the post off Field Supervisors out of general category. In the said list, the names of the Petitioners find place at SI. Nos. 12 to 16. The list is prepared taking into consideration the seniority of each candidate. In other words, after adjudging the minimum merit, the list was prepared keeping the seniority in view. Keeping in mind the financial position of the Bank, the Board had taken a decision to fill up only 19 posts out of which 11 had to be out of general category & 8 out of reserved category. Admittedly, the Petitioners belong to general category. In view of the said decision, 11 candidates according to the list prepared adhering to principles of 'Seniority-cum-merit' were promoted in the year 1990. The only other submission made by Mr. Mohapatra is that as promotional posts were lying vacant, in order to deprive the Petitioners from the legitimate promotion the Board promoted only 11 candidates ignoring the just claim of the Petitioners. This action, it is submitted; clearly reveals mala fide.
8. The said submission is strongly repudiated by Mr. Samantaray, Learned Counsel appearing for the Bank. Relying upon the decision of the Supreme Court in the case of Aryavrat Gramin Bank v. Vijay Shankar Shukla 2007 (12) Scale 482, Mr. Samantaray, submitted that only because a person has been selected & his name finds place in the select list, the same by itself does not confer any legal right on him to be promoted.
9. We find some force in the submission made by Mr. Samantaray. Law is well settled that the appointing authority has the prerogative to fill up the posts according to their necessity & no Court can direct the authorities to fill up all the posts, unless it is satisfied that not filling up of the post is intentional or is made with mala fide intention.
10. A reading of the counter affidavit reveals that the Bank keeping its financial position in mind intended to fill up of the promotional posts phase-wise. To countenance such stand, Mr. Mohapatra, submits that the Bank had filled up some posts of officers, but did not fill up the post of Field Supervisors on the ground of financial crunch. These submissions are strongly denied by Mr. Samantaray. According to him, to run banking business, both the officers & staff are necessary. In other words, the Bank can neither run only by the staff nor the business can be carried on only by officers. The authorities all along tried to maintain a balance between the two & appointed/promoted only those posts, which were very much essential that too within the financial position of the Bank. Be that as it may, it is now a trite law that only because a person has been selected & his name finds place in the select list, the same by itself does not confer any legal right on him to be promoted. It is also trite that ordinarily the Court can not exercise its power of judicial review & cannot interfere with the right to make promotion by an employer unless its action or inaction is found to be wholly arbitrary so as to offend Article 14 of the Constitution of India. In the case in hand, we find that after 1990 no promotion to the post of Field Supervisor has been made till date. Thus, we find no infirmity or arbitrariness in the decision taken by the Bank authorities.
11. In course of hearing, however, it appears that steps are being taken to fill up the balance promotional posts of Field Supervisors. We, therefore, direct that the case of the Petitioners should also be considered keeping in mind their seniority as well as eligibility condition when the exercise for filling up of the promotional post is taken up.
12. With the aforesaid observation, the writ application is disposed of.
B.N. Mahapatra, J.
13. I agree.