- (1.) By this judgment, I propose to dispose of Civil Writ Petition Nos. 2798 of 1986,3459,5712,10931 and 10932 of 1988 and 6004 of 1989 as common question of law and facts is involved therein. The facts are taken from Civil Writ Petition No. 3459 of 1988.
(2.) Petitioners in all these writ petitions are working as Managers in various Gramin Banks. In the Writ Petition, they have impugned the action of respondents No. 2 and 3 on the ground that they being the senior-most Managers have been ignored for promotion in an arbitrary manner. According to the petitioners, promotions were to be made on the basis of seniority-cum-merit. Against this, respondents have stated that departmental promotions were to be made in conformity with the guidelines received from the The National Bank for Agriculture and Rural Development (in short 'NABARD) and the rules made under the provisions of the Regional Rural Banks Act, (in short 'the Act'). Further, according to the respondents, as per the guidelines, the respondents adopted the procedure which is reproduced as under:- "1. Senioriry--40 marks @ 4 marks per completed year of service as on 31.3.1988 subject to a maximum of 40 marks. 2. Performance40 marks @ 8 marks per year for the performance of last five years i.e. from 1983 to 1987. Performance Review Committee shall constitute of Chairman and General Manager. 3. Interview20 marks. Respondents have further stated that promotion to the cadre of Area/Senior Manager was conducted strictly in accordance with the above mentioned procedure and those who were found suitable were promoted.
(3.) Having heard the learned counsel for the parties at length, I am of the view that the writ petitions deserved to succeed. There is no dispute that the petitioner is governed by the guidelines called NABARD guidelines. Vide Annexure P-12 guidelines were issued by NABARD regarding promotions of Managers to the post of Area/Senior Managers in Regional Rural Banks. The guidelines provided that the posts of Area Managers/Senior Managers are promotional posts to be filled up by 100% promotion from only one source and non-selection rule of seniority-cum-merit has to be applied. This rule envisages promotion by seniority with due considerations to minimum merit/fitness prescribed. Fitness implies that there is nothing against an officer, no disciplinary action is pending against him and none is contemplated. The officer has neither been reprimanded nor any adverse remarks have been conveyed to him in the reasonable recent post. The promotions are meant to be made on the abovementioned consideration only. In other words, if a Manager satisfies the qualifications and eligibility criteria and there is nothing adverse against him, his due promotion should not be denied to him. "Certain Gramin Banks sought clarification on this circular and the clarification was given by NABARD vide letter dated 10.2.1988 (P-13) in which it was noted that various Gramin Banks had over-looked eligible officers/employees for promotion. It was, thus, clarified that whenever any adverse remarks is made against an employee, it must be communicated to the person concerned and he must be afforded an opportunity to clarify/explain his position/improve his performance. It was further clarified that any adverse action based on such reports, such as denial of promotion to such officials, should be taken only after considering any representation they may choose to submit within the stipulated time. A reading of those guidelines as contained in these two circulars makes it abundantly clear that the guidelines never contemplated assessment of comparative merit. This is apparent from the fact that in the guidelines prescribed by the NABARD it is clearly pointed out that it is a 'promotional post on non- selection rule of seniority-cum-merit'. Gramin Banks instead of following these guidelines fixed a different criteria when by 40 marks were fixed for seniority, 40 for performance and 20 marks for interview. At the time of hearing, learned counsel for the Gramin Bank has vehemently contended that it was left to the Gramin Bank to adopt the norm/procedure for selection, but I am not prepared to accept this contention. Once it is accepted that the parties are governed by the guidelines which the NABARD, issued, then it was not open to the Gramin Bank to issue norms which would nullify the guidelines issued by NABARD. These very guidelines came up for consideration before various High Courts i.e. Karnataka High Court in Civil Writ Petitions No. 14471 of 1990, 21423 to 21425 of 1990, Kerala High Court, Calcutta High Court and Himachal Pradesh High Court 1991 3 SLR 652. In all these cases, the norm adopted by the Gramin Bank others than seniority-cum-merit was held to be invalid as the same could be adopted in the case of selection posts where merit-cum-seniority is the criteria and not where the post is non-selection and seniority-cum-merits the criteria for promotion. The very argument now raised by the counsel for the Bank was amply answered in paras 6, 7 and 8 of the judgment rendered by the Karnataka High Court in Writ Petition No. 14471 of 1990 and 21423 to 21425 of 1990. The same are reproduced as under:- "6. It is now an undisputed proposition that there is a difference between merit-cum-seniority" and "seniority-cum-merit", as a basis for promoting the candidates working in an establishment. In the latter case, "the promoting authorities has to consider the cases of officers eligible for promotion on strictly according to seniority. If seniormost official due for promotion is found fit for promotion he has to be promoted. There is no question of comparing his merit with those of his juniors. In other words unless the senior officials is found unworthy for promotion either on account of adverse service record, or does not satisfy other conditions or qualification, he has a right to be promoted. It is only after reaching the conclusion that the senior-most official is unsuitable for promotion the appointing authority could proceed to consider the case of next senior and so on, on each occasion for promotion. Therefore, the merit of each eligible officer has to be considered in the order of seniority, his merit has to be examined with reference to his fitness to hold the higher post and discharge its functions. The merit has an exclusive nexus with the higher post for which promotion is to be effected 'Merit, here, has nothing to do with the merit' of other competiting officers. 8. Therefore, when the relevant Rules prescribed the basis for promotion as seniority-cum-merit", there was no scope to consider the comparative merits of eligible candidates. The guidelines could not have gone beyond the scope of the Rules. On this short ground alone these petitions are entitled to succeed. Counsel for the Gramin Bank has not been able to bring to my notice any other judgment taking a contrary view to the one taken by the High Courts mentioned above. It is worth mentioning at this stage that against the judgment of the Kerala High Court, S.L.P. Nos. 6066 to 6068 of 1990 were preferred before the Apex Court and the Apex Court affirmed the decision of the Kerala High Court. Consequently, the norm adopted by the respondent-Bank cannot be maintained and the same is hereby quashed. Selection of promotional post being on seniority-cum-merit, seniority will get first preference to merit unless there are good reasons to deny promotion.;