K.VIJAYAN (426), CLERK-CUM-CASHIER, SOUTH MALABAR GRAMIN BANK, TUVVUR BRANCH, MALAPPURAM v. NONE

Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal.” How the principle of seniority-cum-merit has to be made applicable has been considered by a three member Bench of the Honourable Supreme Court in B.V.Sivaiah v. K.Addanki Babu ((1998) 6 SCC 720). In paragraphs 25 and 26 of the said judgment, the Supreme Court considered an identical selection in a Grameena Bank, wherein the contention of the Bank was that the officers who have secured higher marks can only be ultimately promoted and the principle of seniority-cum-merit was not accepted by the Apex WA 2667/07 8 Court and the Apex Court set aside those selections as mode of selection was contrary to the principle of 'seniority-cum-merit' as laid down in the Rules and the decision of the High Court was upheld by the Supreme Court. In paragraphs 17 and 18, the Apex Court observed as follows: “While applying the principle of seniority-cum-merit for the purpose of promotion, what is required to be considered is the inter se seniority of the employees who are eligible for consideration.

Such seniority is normally determined on the basis of length of service, but as between employees appointed on the same date and having the same length of service, it is generally determined on the basis of placement in the select list for appointment. Such determination of seniority confers certain rights and the principle of seniority-cum-merit gives effect WA 2667/07 9 to such rights flowing from seniority. It cannot, therefore, be said that in the matter of promotion on the basis of seniority-cum-merit, seniority has no role where the employees eligible for promotion were appointed on the same date and have the same length of service. 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.” The Apex Court in paragraph 32 held as follows: “We have heard the learned counsel for the appellants.

It is not disputed that the selection WA 2667/07 10 was made on the basis of marks assigned on the basis of interview by the Selection Committee and those who secured the highest marks were selected. The selection process adopted for the purpose of promotion to the post of Area Managers/Senior Managers was thus not in consonance with the principle of “seniority-cum-merit” and the promotions were not made in accordance with the Rules. Civil appeal arising out of Special Leave Petitions (C)Nos.17780-81 of 1997, are, therefore, liable to be dismissed.” The above principle is reiterated by the Apex Court in Hari Govind Yadav v. Rewa Sidhi Gramin Bank (AIR 2006 SCW 2822).

If the method of promotion is on the basis of seniority-cum-merit principle, comparative merit of all eligible candidates can be assessed. Such process is adopted with regard to the selection posts. The Apex Court in Union of India v. Lt.Gen. Rajendra Singh Kadyan WA 2667/07 12 ((2000) 6 SCC 698) held as follows: “Wherever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled on the basis of seniority subject to rejection of the unfit. Fitness means fitness in all respects. “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.” The Selection Committee cannot prescribe cut off marks after the selection process started and in any event, against Exhibits P1 and P3 Rules, wherein it was specifically stated that no cut off marks will be there for the interview.

If cut off WA 2667/07 13 marks were prescribed in the Rules, the position would have been different. We also note that the appellant has got more than 40% marks. In these circumstances, the appellant ought to have been selected. There are only six vacancies for the Scheduled Caste categories. The eighth respondent is the junior most candidate among the selected candidates. All the contesting respondents passed the written test. The appellant has also passed the written test. Therefore, the junior most has to go if the appellant is selected. The junior most can appear in the next selection process, as he is very junior, whereas the appellant has already attained the age of 56 years. We make it clear that since the appellant/petitioner has filed the appeal and contested the matter up to this stage, only he will be entitled to get the benefit arising from this judgment, as others have not filed any appeal.

Closed matters cannot be re-opened at this distance of time. But, the appellant was fighting his case from day one till this day. With regard to WA 2667/07 14 equitable reliefs, we make it clear that the appellant will be entitled to notional promotion only from the date when others were promoted from the date of Exhibit P5 (22.7.2005). But the appellant will be entitled to actual pay on the promoted post only from 1.10.2008. We also make it clear that any higher wages paid on the promoted post to the eighth respondent shall not be recovered from him and due weightage and service benefits other than pay should be given to the appellant as if he was promoted with effect from