Mohan Pavate and Others Vs. Management of Malaprabha Grameena Bank, Dharwad and Others - Court Judgment

Excerpt:
- contempt of courts act, 1971 -- section 2(c);[s.r. bannuramath & r.b. naik, jj] criminal contempt - accused found guilty of making scandalous allegations against three judges of the high court - allegations that three judges are the agents of anti-social order, following practice of untouchability, involvement in fraud and deceit etc., - held, there cannot be any second opinion that the remarks or the writings of the accused are scandalous. having regard to the gravity of the contemptuous statements, the recklessness with which they are made, the intemperamentness of the language and the contemnor being a responsible official and a b.com graduate, it cannot be said that mere punishment of fine would be adequate, but the contemnor must also undergo imprisonment. accused was sentenced.....orderh.l. dattu, j. 1. since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed off by this common order. 2. malaprabha grameena bank is a regional rural bank established under the provisions of regional rural banks act, 1976. the bank is sponsored by syndicate bank, which is a nationalised bank. 3. petitioners 1 to 3 in w.p. nos. 23867 to 23870 of 1995 had joined the services of the rural bank some time in the year 1977 as branch managers. petitioner 4 had joined the services of the bank as officer grade i. petitioner in w.p. no. 43467 of 1995 had joined the services of the respondent-bank as manager and at the time of filing of this petition, was working at hirehonnahalli branch of the respondent-bank, petitioners 1.....

Judgment:
ORDER

H.L. Dattu, J.

1. Since common questions of fact and law are involved in all these writ petitions, they are clubbed together, heard and disposed off by this common order.

2. Malaprabha Grameena Bank is a Regional Rural Bank established under the provisions of Regional Rural Banks Act, 1976. The Bank is sponsored by Syndicate Bank, which is a nationalised Bank.

3. Petitioners 1 to 3 in W.P. Nos. 23867 to 23870 of 1995 had joined the services of the Rural Bank some time in the year 1977 as Branch Managers. Petitioner 4 had joined the services of the Bank as Officer Grade I. Petitioner in W.P. No. 43467 of 1995 had joined the services of the respondent-Bank as Manager and at the time of filing of this petition, was working at Hirehonnahalli Branch of the respondent-Bank, Petitioners 1 and 3 in W.P. Nos. 11979 to 11981 of 1995 had joined the services of the respondent-Bank as Branch Managers and petitioner 2 therein had joined the services of the Bank as Probationary Officer.

4. In these petitions filed under Article 226 of the Constitution, petitioners primarily question the correctness or otherwise of the order of promotion bearing No. 86/15/95/PSD, dated 15-4-1995 passed by respondent-Bank in promoting respondents to the next promotional post of Middle Management Grade Scale II Officers (for short 'MMGS II'). Secondly, the promotion policy issued by the respondent-Bank in its circular bearing No. 53/8/95/PSD, dated 28-2-1995 insofar as procedural aspects prescribed therein and lastly, for a direction to the respondent-Bank to consider the case and claim of these petitioners for promotion to the cadre of MMGS II purely on seniority-cum-merit from the date of their entitlement or in the alternative from the date their immediate juniors were promoted and to grant consequential service and monetary benefits.

5. Respondent-Malaprabha Grameena Bank (hereinafter referred to as 'Bank') is incorporated under Section 3(1) of the Regional Rural Banks Act, 1976. Syndicate Bank is its sponsor Bank. It is stated in the petitions, which is not denied by respondents either, that the Bank has its own Service Regulations framed in exercise of the power under Section 30 of the Regional Rural Banks Act, 1976, after consultation with sponsor Bank and National Bank for Agricultural and Rural Development (for short 'NABARD') with its previous sanction of the Central Government.

6. The Board of Directors of each Rural Banks is authorised under the rules framed by the Central Government in consultation with spon. sor Bank to create such number of posts as are specified in the Second Schedule to the rules from time to time. Rule 4 prescribes that the Board of Directors may in consultation with the sponsor Bank, determine the number of vacancies in each post keeping in view the guidelines issued by the Central Government from time to time. In exercise of this power, the Board of Directors of the Bank after obtaining necessary approval from the sponsor Bank have created 37 promotional posts ir the category of Middle Management Grade Scale II in their meeting held on 24-10-1994 and the posts to be filled up by internal promotion based on the guidelines issued by NABARD from time to time. The guidelines for promotion is circulated to all its branches by respondent-Bank by its Circular No. 53/8/95/PSD, dated 28-2-1995. The guidelines so issued would clearly prescribes that the promotional posts are to be filled up by 100% promotion on the basis of seniority-cum-merit from amongst the officers, who have put in a minimum of 8 years of service in the Bank. Since the entire case of the petitioners revolves round on the procedure prescribed in the circular, the same requires to be noticed. Therefore, it is extracted.

'Malaprabha Grameena Bank

Head Office: Belgaum Road:

P.B. No. 111, Dharwad-580 008.

Personnel and Secretarial Division

Ref: Cir. No. 53/8/95/PSD

Date: 28-2-1995.

To

All Our Branches/ Offices.

Promotion to the Category of

Middle Management Grade Scale II

We are pleased to inform that the sincere and hard work put in by the staff at all levels in the past years and helping the Bank to achieve the turnaround strategy has now paid rich dividends in terms of increased business, thus creating promotional opportunities to handle Branches which have been categorised as Large, Medium/Main Branches.

The vacancies so created will be filled up by internal promotion based on the guidelines issued by NABARD from time to time. Accordingly, the Board of Directors have categorised one Branch as large Branch and 36 Branches as Medium/Main Branches which was subsequently approved by sponsor Bank and have thus created 37 promotional posts in the category of Middle Management Grade Scale II in their meeting held on 24-10-1994.

While stipulating the procedural aspects of selection for promotion to the above post, NABARD guidelines state as under:

1. That the promotional posts shall be filled in by 100% promotion on the basis of seniority-cum-merit from amongst the officers, who have put in a minimum of 8 years of service in the Bank.

2. Seniority-cum-merit does not construe automatic promotions without any screening whatsoever but stipulates on objective assessment of the officers' potential for considering their suitability for promotion.

3. Through objective assessment of performance of officers it shall be ensured that only efficient staff capable of shouldering higher responsibilities are eligible for promotion.

4. Any adverse remarks conveyed and punishments awarded in the reasonable recent past i.e., last 3 years and any disciplinary action which is pending against an officer and which is contemplated shall also be taken into consideration while effecting promotions.

Eligibility for promotion shall be as under:

Qualification and Eligibility;

(i) A Graduate of recognised University with preference to Agriculture/Commerce/Economics Graduates.

(ii) Eight years service as an officer in the Bank as on 31-3-1994. Period under suspension if any, which was treated as period not spent on duty and unauthorised absence shall not count for the purpose of computation of total service period.

The rating factor for promotion which envisages weightage to both seniority and also merit as resolved by the Board is as under:

Factors

Rating

i. Service:

1/2 Mark for every completed month of servicesubject to a maximum of 100. More than 15 days of service in a month shall bereckoned as a completed month of service. Cut off date being 31-3-1994.

100

Marks

ii. performance Appraisal:

Average of last 3 years i.e., 1991-92, 1992-93and 1993-94.

70

Marks

iii. Interview:

30

Marks

Total

200

Marks

Evaluation of Performance:

For evaluating the performance of officers, the performance Appraisal System in force shall be followed.

The rating points for performance shall be calculated as under.-

Category PointsOutstanding 100%Above Average 75%Average 50%Below Average 25% Interview:

The rating points for potential officers for promotion shall be awarded by the Interview Committee as constituted by the Board.

As per records, the officers whose name is appearing in the Seniority List in Circular No. 233/44/94/PSD, dated 12-11-1994 from Seniority Numbers 001 to 215 are eligible for promotion to the category of Middle Management Grade Scale II by virtue of completing 8 years of minimum service as on 31-3-1994 in the scale of pay Rs. 2100-4020 which previously in the RRB Scale was Rs. 1900-3650.

The existing posts of Area Managers/Senior Managers and the now declared promotional posts for the category of Middle Management Grade Scale II are interchangeable.

Officers eligible for promotion will be issued with individual call letters for appearing before the interview committee.

Branches may please note that categorisation is now a continuous process which will create promotional avenues in its wake. Promotions from Scale I to Scale II will pave the way for further promotions among other cadres and also for recruitment, thus providing employment opportunities to the younger generation.

The Branches should therefore make use of this opportunity to work with a positive attitude by expending greater energy and effort to increase the business level so as to generate promotional avenues at all levels and also for further recruitment.

Chairman'.

7. Promotion policy would indicate the following salient features. They are (i) The promotional post -- Middle Management Grade Scale II requires to be filled up by 100% promotion on the basis of seniority-cum-merit. (ii) An officer should have put in minimum of 8 years of service in the feeder cadre as on 31-3-1994 and should possess minimum qualification namely a graduate of recognised University, (iii) Factors that are to be taken, into consideration for promotion are, the Officer's Service Profile, performance appraisal report for the last three years and interview. (iv) 100 marks is set apart for service profile of the officer. Half mark is awarded for every completed month of service subject to a maximum of 100 marks. More than 15 days of service in a month is reckoned as a completed month of service, the cut off date being 31-3-1994. (v) For performance appraisal, 70 marks are prescribed and marks are awarded by considering the appraisal reports of the years 1991-92, 1992-93 and 1993-94 and lastly, (vi) 30 marks is prescribed for interview. Thus out of total of 200 marks, 50% marks is set apart for performance appraisal and interview,

8. Respondent-Bank pursuant to the aforesaid circular had invited petitioners and other eligible and qualified officers for interview. Since these petitioners though were assigned higher ranking in the seniority list of Managers/Officers Grade I, did not secure better percentage of marks in the interview, they were not selected and promoted to the next promotional post of MMGS II. It is the grievance of these petitioners before this Court that the action of the respondents in promoting their juniors, ignoring their case and claim is wholly arbitrary, illegal and invalid and opposed to criteria of seniority-cum-merit. In support of this contention, their learned Counsels strongly rely on the observations made by Apex Court in the case of B.V. Sivaiah and Others v K. Addanki Babu and Others.

9. Respondent-Bank has filed its objections in all these petitions, resisting the relief sought for by petitioners therein. In the statement of objections filed in W.P. Nos. 23867 to 23870 of 1995, the Bank contends that NABARD had issued a circular dated 11-5-1988 to all Regional Rural Banks drawing up a system of marks for promotion to various categories to meet the standards of proficiency, etc., and had also allowed to make marginal modifications to suit their needs. It appears, in view of the guidelines so issued, the Board of the respondent-Bank in its meeting held on 21-2-1995 had resolved as under:

'Perused the Board Note at length and observed that the promotion process is taking place after a pretty long gap. Board also observed from the Note that NABARD guidelines issued vide No. IDD RRB No. 4281/316/Gen/87-88, dated 11-5-1988 for promotion from JMGS-I to MMGS-II is purely based on performance appraisal ratings for the last three years and interview. This system has also been consented by Sponsor Bank vide letter Nos. 0023/PSC and RDD/I/434/2006, dated 1-2-1995 and permitted tocreate 37 vacancies in MMGS-II and also permitted to initiate promotion process. Further, Board also observed that there is no weightage for seniority in the NABARD guidelines vide their letter dated 11-5-1988. Therefore, Board felt that seniority of officers should also be taken into account as some of the officers have put in service ranging from 14 to 17 years. Board also noted that the senior officers have worked for the Bank's growth and development, since inception, even without basic amenities at the place of their working. Board further felt that if only performance ratings and interview have been looked into while effecting promotions, some of the junior officers by chance heading potential branches for the last 3-4 years have an edge over the senior officers. Therefore, Board after a thorough deliberations on the issue decided to give due weightage to the seniority. Accordingly, resolved that due weightage for seniority along with performance appraisal ratings and interview be taken while affecting promotions'.

10. The respondent-Bank further states in its objections statement:

'1. The petitioners have laid emphasis on seniority-cum-merit as the sole criteria for promotion, but fail to realise that seniority-cum-merit does not entitle a candidate for automatic promotion, without any screening. Further, petitioners do not comprehend that assessment of merit of an officer consists of objective assessment of the potential for finding out suitability for promotion. This is what is laid down by NABARD circular of 10-2-1988. Again, the circular of 28-2-1995 states that such objective assessment of performance will have to ensure that only efficient staff capable of shouldering higher responsibility are eligible for promotion. The Bank will have to make an objective assessment to identify officers who satisfy the above criteria. The promotion procedure evolved vide circular dated 28-2-1995 clearly states that only efficient staff capable of shouldering higher responsibilities are eligible for promotion. Such objective assessment is necessary in the * interests of overall development of the Bank. Eligibility of a candidate for promotion does not mean of years of service alone, but eligibility has to be tested with regard to various other parameters as contained in the circular of 28-2-1995 promotional policy evolved by the Bank. This is again done within the framework of Regulation 30 of the Regional Rural Banks Act, 1976 and in consultation with NABARD and the sponsor Bank. The Bank has a Board which is vested with powers to discharge various functions in the management of the affairs of the Bank. Regulation 14 of the Bank's Staff Service Regulations provides that promotions in the Bank shall be made at the discretion of the Bank and no officer can claim promotion as a matter of right to a particular post or grade'.

11. The sum and substance of the contention of the respondents in their statement of objections seems to be that it is the seniority alone is not taken into consideration for effecting promotions, but also the per-formance appraisal reports and the performance in the interview by the officers eligible for promotions.

12. The criteria 'seniority-cum-merit' was the subject-matter of several decisions of Apex Court. In Sivaiah's case, supra, the Supreme Court after briefly making reference to all its earlier decisions, has crystallised the meaning of this volatile expression. In the said case, the Court has observed 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 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'.

13. In Sivaiah's case, supra, the Supreme Court was considering the circular dated September 27, 1989, issued by Rayalaseema Grameena Bank, which is also a Regional Rural Bank established under Regional Rural Banks Act. In those cases, promotions were effected by the Rural Banks setting apart over 50% marks for interview and performance and promoting only those officers, who had secured highest marks. The Apex Court while confirming the orders made by Andhra Pradesh High Court was pleased to hold:

'Promotion to the post of Area/Senior Managers in Grameena (Rural) Banks is to be made as per seniority-cum-merit rule. The promotion process laid down by the Rayalaseema Grameena Bank in its circular dated September 27, 1989, sets apart 34 marks for seniority, 10 marks for qualifications, 20 marks for interview and 56 marks for performance, thus out of a total number of 120 marks the maximum number of marks that could be awarded for seniority is 34 and that 0.75 mark was to be given for each completed month of service over and above the minimum qualifying service. In other words, if two persons are appointed on the same day, the same number of marks had to be awarded for seniority. Moreover, out of a total number of 120 marks more than 50% marks were set apart for interview and performance. So also only those officers who had secured the highest number of marks were ultimately promoted. Thus, it is not a case where minimum qualifying marks are prescribed for assessment of performance and merit and those who secure the prescribed minimum qualifying marks are selected for promotion on the basis of seniority. The mode of selection that was in fact employed was contrary to the principle of 'seniority-cum-merit' laid down in the rule'.

14. The Supreme Court while considering the circular dated 16-3-1992 issued by Pinakini Grameena Bank was pleased to observe:

'27. Pinakini Grameena Bank.--On February 19, 1992, the Board of Directors of the Pinakini Grameena Bank decided to create two posts of Area Managers and four posts of Senior Managers. The Board formulated the promotion policy and communicated it to all the branches through its Circular No. 37/PSD/13/92, dated March 16, 1992, which laid down the following promotion process.-

'Eligibility.--The Officers (Managers) who have completed 8 years of service as on 31-3-1992 are eligible for considering the promotion to Area/Senior Manager posts.

Weightageof Marks:

(a)

SeniorityOfficers (Managers) who have completed 8 years of service as per SSR of theBank

: 55 Marks

(b)

For passing CAIIB Part I

: 2 Marks

CAIIBPart II

: 3 Marks

(c)

Performance

: 25 Marks

(d)

Interview

: 15 Marks

100 Marks

Further, we observe that many of the Officers (Managers) have not submitted the performance appraisals for the years, 1989, 1990 and 1991 to assess their performance. Such officers are advised to submit the performance appraisals so as to reach HO:PSD on or before 31-3-1992. Otherwise, we will be constrained to assess their performance based on the information available with us.

A Committee is constituted for the purpose of conducting interview as per Government of India guidelines.

The dates of interview will be intimated to the candidates individually, in due course'.

28. In the proceeding held on April 20, 1992 five Branch Managers were promoted as Area/Senior Managers. Three Branch Managers, namely, K. Addanki Babu, P. Raghava Rao and V.C. Krishna Prasad filed Writ Petition No. 5204 of 1992 in the Andhra Pradesh High Court wherein they challenged the order dated April 20, 1992, regarding the promotion of the said five Branch Managers as Area/Senior Managers. The said writ petition was allowed by the learned Single Judge by his judgment dated December 17, 1993 wherein he followed the earlier judgment of the learned Sin-gle Judge dated September 7, 1993 given in the writ petitions relating to the Rayalaseema Grameena Bank. Writ Appeal No. 417 of 1994 was filed by the Pinakini Grameena Bank while Writ Appeal No. 422 of 1994 was filed by the promoted officers whose promotions were set aside by the judgment of the learned Single Judge, Both these appeals have been dismissed by the Division Bench of the High Court. The learned Judges have pointed out that the cases of all officers eligible for promotion to the posts of Area/Senior Managers were considered and only those who secured highest number of marks amongst them were ultimately promoted and that this method of selection is contrary to the principle of seniority-cum-merit'. Civil Appeal Nos. 3809 and 3810 of 1996 have been filed by the Chairman of the Pinakini Grameena Bank, while Civil Appeal No. 3798 of 1996 has been filed by the promoted officers against that part of the judgment of the High Court.

29. From the circular dated March 16, 1992 laying down the promotion process it is evident that selection was to be made on the basis of marks to be awarded by the Selection Committee and that out of total number of 100 marks, 55 marks were to be awarded for seniority while 25 marks were assigned for performance and 15 marks for interview. There was no indication in the said circular as to how 55 marks for seniority were to be given to the Branch Managers, who were eligible for consideration for promotion on March 31, 1992. The said circular did not prescribe minimum qualifying marks for assessment of performance and merit on the basis of which an officer would be considered for being selected and, as pointed out by the High Court, the selection was made of only those officers, who secured highest number of marks amongst the eligible officers. In the circumstances, the High Court, in our view, has rightly held that this method of selection was contrary to the principle of 'seniority-cum-merit' and it virtually amounts to the application of the principle of 'merit-cum-sen-iority'. We, therefore, do not find any merit in Civil Appeal Nos. 3809, 3810 and 3798 of 1996 and the same are also liable to be dismissed'.

15. In my opinion, the factual matrix in Rayalaseema Grameena Bank and Pinakini Grameena Bank is more or less identical with the facts situation and the promotion policy circulated by respondent-Malaprabha Grameena Bank. In fact, in Pinakini Grameena Bank's case, the circular dated 16-3-1992 provided for eligibility and weightage of marks for considering officers (Managers), who have completed 8 years of service as on 31-3-1992 for promotions to Area/Senior Manager posts. Under the head - weightage of marks, out of total of 100 marks, 55 marks was set apart for seniority, 25 marks for performance, 15 marks for interview and other 6 marks for passing bank examinations. While commenting on procedure prescribed in the circular, the Apex Court was pleased to observe that the circular did not prescribe minimum qualifying marks for assessment of performance and merit on thebasis of which an officer would be considered for being selected and as pointed out by the High Court, the selection was made of only those officers, who secured highest number of marks amongst the eligible officers. After saying so, the Court was further pleased to observe that in the circumstances, the High Court, in our view, has rightly held that this method of selection was contrary to the principles of 'seniority-cum-merit' and it virtually amounts to the application of the principle 'merit-cum-seniority'.

16. The salient features in the impugned circular is that, it prescribes as to how 100 marks for service factor has to be awarded, It clearly stipulates that half mark is required to be awarded to each completed month of service subject to maximum of 100. It also provides that more than 15 days of service in a month is reckoned as completed month of service. The cut off date is -fixed as 31-3-1994 which is few months earlier to the date of consideration of the cases of eligible officers for promotion. Insofar as performance appraisal is concerned, the circular prescribes that the average of last three preceding years namely, the appraisal report for 1991-92, 1992-93 and 1993-94 would he taken into consideration. Out of total marks of 200, for performance appraisal 70 marks are set apart. The circular also indicates the manner and method that would be adopted by the Bank for evaluating the performance of the officers. It says that the rating points for performance shall be calculated if the performance appraisal is outstanding, 100%, above average, 75%, average, 50% and below average, 25%. The parameters used for rating the performance appraisal report for Managers/Officers at Branch levels for the years 1991-92 and 1992-93 and which has been followed for the next year also is broadly based on deposit mobilisation, advances, recovery, internal control, staff and public relations and recommendations of the Reporting Officer. The circular also prescribes the maximum marks for interview. Out of total 200 marks, only 30 marks are prescribed for interview. The only lacuna that can be pointed out in the procedure prescribed in the circular is not prescribing the minimum marks which would entitle an officer to be promoted on the basis of seniority-cum-merit.

17. Keeping in view the law declared by Supreme Court in B.V. Sivaiah's case, supra, the factual position noticed therein and the impugned circulars, let me now examine whether the action of the respondent-Bank in promoting respondents 2 to 37 to the next promotional post is either arbitrary or illegal and whether the circular impugned is in violation of any of the constitutional provisions.

18. The impugned circular prescribes firstly, the zone of consideration of officers working either as Area Manager/Senior Manager. It envisages that they should have eight years of service as an officer in the Bank as on 31-3-1994. It specifically excludes the period of suspension, if any, which was treated as period not spent on duty and unauthorised absence shall not count for the purpose of computation of total service period. The rating factors required to be taken into consideration for promotion are service factor, performance appraisal report and the inter-view. The service factor carries the maximum number of marks. This is calculated on the number of months of completed service. More the number of months of service, the eligible officer gets more marks, since half mark is prescribed for every completed month of service subject to a maximum of 100 marks. Take for example, petitioners in these writ petitions had joined the services of the respondent-Bank during the year 1977 or in 1978. The number of years of service as on 31-3-1994 rendered by these petitioners is not be less than 16 years and therefore, they are bound to get maximum marks because of their service factor while considering their case for promotion. Nextly, the marks are awarded for performance appraisal. For this purpose, the average of last three years before the date of consideration for promotion is taken. For the present case, it is for the years 1991-92, 1992-93 and 1993-94. For evaluating the performance of officers, a particular system is adopted, which provides for insight to the capacity of the officer to shoulder the higher responsibilities in the Banking institution. This is once again does not depend on a sole factor. The rating of the performance appraisal report is done on the capacity of the officer in deposit mobilisation, advances sanctioned, recovery of loans and outstanding dues from the customers, his capacity to control subordinate staff and arranging the financial affairs of the Branch, his cordial relations with the staff and the customers and the recommendations made by the Reporting Officer. This performance appraisal carries maximum of 70 marks out of total of 200 marks. The remaining 30 marks is for the interview. The Supreme Court in Sivaiah's case, supra, has observed that the Competent Authority can lay down the minimum standard that is required for promotion and also prescribe the mode of assessment of merit of the employee, who is eligible for promotion. The Court has also observed that such assessment can be made by assigning marks on the basis of appraisal, performance on the basis of service record and interview.

19. However, Sri Satish Doddamani, the learned Counsel appearing for some of the petitioners contends that the criteria prescribed for appraisal of the performance of the officer is most unscientific. In support of this contention, the learned Counsel submits that an officer posted to rural branches of the respondent-Bank will not be in a position to show his real merit in view of less number of customers and the area of operation. This contention requires to be noticed only to be rejected. Rural Banks are established mainly to cater to the needs of the villagers and where the Nationalised Banks do not have their branches. Secondly, performance appraisal does not depend on one single factor of deposit mobilisation. As I have already observed that performance appraisal is made by the superior/higher officer of the Bank on various factors and incidentally that would include deposit mobilisation. Therefore, this contention cannot be accepted and the procedure adopted by the respondent-Bank cannot be said that it violates any of the constitutional provisions.

20. The second question that requires to be considered is whether the Bank has strictly followed seniority-cum-merit criteria while promoting respondents 2 to 37 in their impugned order of promotion. The proce-dure in the circular for promotion provides for a zone of consideration. The persons to be considered for promotion from the feeder category is limited to those officers, who have completed 8 years of service on 31-3-1994. The factors which are required to be taken into consideration are the service profile of the officer, performance appraisal report and the interview. These factors do not infringe either Article 14 or 16 of the Constitution or any rules made by Regional Rural Banks. Therefore, these factors cannot be said either arbitrary or capricious. The guidelines issued by the Bank by its circular dated 28-2-1995 provides that seniority as the main factor that requires to be considered for promotion along with other factors namely, merit, suitability, etc. This scheme is commonly known as seniority-cum-merit and the promotions are not automatic merely based on the ranking of the officer in the seniority list. It includes an element of suitability also. The proper procedure that requires to be followed when the promotions are based on seniority-cum-merit is explained by the Apex Court in Sivaiah's case, supra. As I understand the said procedure, is to prepare list of all candidates in the feeder post in the order of seniority and thereafter, consider each case on merit and reject the unfit. For assessing the minimum 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/officer, who is eligible 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 further prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. The Supreme Court, in my opinion, in B.V. Sivaiah's case, supra, has positively mandated that in the matter of promotion based on the criteria of seniority-cum-merit that gives 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.

(emphasis supplied)

21. Sri Chandrashekar, learned Counsel for respondent-Bank has produced the list of officers, who appeared for the interview and the procedure adopted by the interview committee.

22. A perusal of the same would clearly indicate that the interview/selection committee has given importance to primarily the total number of years that the officer has put, in the services of the respondent-Bank and his performance for the preceding three years. For example, in the list prepared, the selection committee has placed one Sri A.N. Betageri on the top of the list. The said officer had joined the services of the Bank on 13-6-1977 and his performance appraisal reports for the relevant years indicates outstanding. Therefore, he is awarded the total 170 marks. In the interview, he is awarded 17.60 marks. Adding this marks with the total marks secured for total service and performance marks, he is awarded a total of 187.60 marks out of 200 marks but in the seniority list of the officers, he is at serial No. 61. Now take the instance of D.R. Patil, he is at serial No. 1 in the seniority list. He secures 100 marks for his total number of years, since he had joined theservices of the Bank on 13-6-1977 as Sri A.N. Betageri. Since he was awarded only above average for performance appraisal for preceding three years, he secures only 52.50 marks out of 70 marks and in the interview, he is awarded 11.60 marks and thereby total number of marks secured by him is only 164.10 marks out of 200 marks and therefore, he is placed at SI. No. 22 in the select list. Therefore, what is given importance is their performance appraisal reports and the number of marks secured in the interview and not the ranking of the officers in the seniority list and in my opinion, the selection is made of only those officers, who secured the highest number of marks amongst the eligible officers. As pointed out by Apex Court in Sivaiah's case, supra, that this method of selection is contrary to the principles of seniority-cum-merit and it virtually amounts to the application of the principles of merit-cum-seniority. It is therefore promotions made by respondent-Bank by their impugned order cannot be sustained and the impugned order of promotion requires to be set aside, since the procedure adopted by the respondent-Bank is contrary to the criteria of 'seniority-cum-merit' as explained by Apex Court in Sivaiah's case, supra, and a direction requires to be issued to the respondent-Bank to reconsider the matter keeping in view the law laid down by Supreme Court in Sivaiah's case, supra.

23. During the hearing of these petitions, learned Counsel for petitioners inform me that most of these petitioners before this Court have been promoted to the next promotional post by the respondent-Bank and if for any reason, this Court comes to the conclusion that the procedure adopted by the respondent-Bank is contrary to the criteria of seniority-cum-merit, they should be directed to rearrange the inter se seniority of some of the petitioners and the respondents-promotees. In my opinion, it is difficult to accept this suggestion for two reasons. Firstly, there were nearly 215 officers in the zone of consideration eligible to be promoted to the next higher cadre. Their cases and some of the petitioners cases have also been ignored by the respondent-Bank by adopting a wrong procedure of promotion by the respondent-Bank. Secondly, since the procedure adopted is contrary to the procedure evolved by Apex Court, it may not be proper to accept the procedure followed by the Bank and direct them to arrange only the inter se seniority between the petitioners and promotees. Therefore, in my opinion, the entire 'promotion requires to be annulled by this Court and an appropriate direction requires to be issued to the Bank to redo the matter on the basis of the principles evolved by the Supreme Court in Sivaiah's case, supra.

24. In the result, petitions are allowed to the extent noticed in the course of the order. Rule made absolute to that extent only. The impugned order of promotion made by respondent-Bank dated 15-4-1995 in promoting respondents 2 to 37 is set aside. The Bank is directed to redo the matter keeping in view the principles explained by Supreme Court in B.V. Shivaiah's case, supra, within six months from the date of the order. The respondent-Bank is further directed not to disturb the promotions already made, till such time. All the other contentions of both theparties are left open. In the facts and circumstances of the case, no order as to costs. Ordered accordingly.