CHAIRMAN, RUSHIKULYA GRAMYA BANK v. BISAWAMBER PATRO & Ors.

9. The respondents in each of the appeals who were unsuccessful in getting promotions, challenged the select list E of the promoted candidates by filing writ petitions before the Orissa High Court. The High Court heard W.P.(civil) No.14359/ 2003 (giving rise to civil appeal, arising from SLP(Civil) No.19292/2008)) as the leading case. It allowed the Writ Petition holding that prescription of the benchmark of 60% marks in the aggregate was in violation of the promotion policy F and the rules governing the field. It, accordingly, allowed the Writ Petition and directed the appellant-bank to make fresh selection in accordance with the Rules. (The other writ petitions giving rise to the other appeals were disposed of following the judgment passed in W.P.(Civil) No.14359/2004).

10. In taking the view that the prescription of the minimum qualifying marks in the aggregate was in contravention of promotion based on seniority-cum-merit, the High Court relied upon the decisions of this Court in State of Kera/a v. N.M. G H CHAIRMAN, RUSHIKULYA GRAMYA BANK v. BISAWAMBER PATRO [AFTAB ALAM, J.] 245 Thomas 1 Gramin Bank2 , Bhagwandas Tiwari v. Dewas Shajapur Kshetriya A , and 8. V. Sivaiah v. K. Addanki Babu3. · , this Court re-visited the issue of fixing a high B

11. In a more re9ent decision in Rajendra Kumar Srivastava and Others v. Samyut Kshetriya Gramin Bank and Others4 percentage as the minimum qualifying marks for promotion on seniority-cum-merit basis. It examined all the three decisions (besides others) relied upon by the High Court, namely, Bhagwandas Tiwari (supra), B. V. Sivaiah (supra) and N.M. Thomas (supra).

12. In Rajendra Kumar Srivastava, the Court framed the following two questions for consideration: "8. On the contentions urged, the following two questions arise for our consideration: (i) Whether minimum qualifying marks could be prescribed for assessment of past performance and interview, where the promotions are to be made on the principle of seniority-cum- merit? (ii) Whether the first respondent Bank was justified in fixing a high percentage (78%) as the minimum qualifying marks (minimum merit) for promotion?

13. Answering both the questions in the affirmative, the Court on an analysis of the earlier decisions observed and held that: c D E F "13. Thus it is clear that a process whereby eligible candidates possessing the minimum necessary merit in the feeder posts is first ascertained and thereafter, G

4. (1976) 2 sec 310. c2006} 12 sec 574. (1998) 6 sec 120. (2010) 1 sec 335. H 246 SUPREME COURT REPORTS (2013) 4 S.C.R. A B c D E F G H promotions are made strictly in accordance with seniority, from among those who possess the minimum necessary. merit is recognised and accepted as complying with the principle of "seniority-cum-merit". What would offend the rule of seniority-cum-merit is a process where after assessing the minimum necessary merit, promotions are made on the basis of merit (instead of seniority) from among the candidates possessing the minimum necessary merit. If the criteria adopted for assessment of minimum necessary merit is bona fide and not unreasonable, it is not open to challenge, as being opposed to the principle of seniority-cum-merit. We accordingly hold that prescribing minimum qualifying marks to ascertain the minimum merit necessary for discharging the functions of the higher post, is not violative of the concept of promotion by seniority cum-merit. ,

14. The next question is whether fixing of 78% as minimum qualifying marks (that is, as the minimum • necessary merit) is unreasonable and arbitrary. The Rules in this case provide that the mode of selection is by interview and assessment of performance reports for the preceding three years as officer Scale I. The seniority list of officers in Scale I was published on 4-12-1996. Thereafter, the promotion process was held by earmarking 60 marks for assessment of performance reports (at the rate of 20 marks per year) and 40 marks were allotted for interview. The officers possessing the minimum qualifying marks of 78%, were then promoted on the basis of seniority. What should be the minimum necessary merit for · promotion, is a matter that is decided by the management, having in mind the requirements of the post to which promotions are to be made. The employer has the discretion to fix different minimum merit, for different categories of posts, subject to the relevant rules. For example, for promotions at lower levels, it may fix lesser minimum qualifying marks and fix a comparatively higher CHAIRMAN, RUSHIKULYA GRAMYA BANK v. BISAWAMBER PATRO [AFTAB ALAM, J.] 247 minimum qualifying marks for higher posts." A

14. The decision of the High Court, thus, appears to be clearly contrary to the view taken by this Court in Rajendra Kumar Srivastava.

15. The decision of the High Court is, accordingly, set B aside. The writ petitions filed by the respondents before the Orissa High Court are dismissed. The select list prepared by the appellant-bank is affirmed. The appeals are allowed but with no order as to costs. K.K.T. Appeals dismissed. c