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CASE NO.:

Appeal (civil) 1153 of 2003

PETITIONER:

Harigovind Yadav

RESPONDENT:

Rewa Sidhi Gramin Bank & Ors.

DATE OF JUDGMENT: 09/05/2006

BENCH:

B N Srikrishna & R V Raveendran

JUDGMENT:

J U D G M E N T

RAVEENDRAN, J.

The appellant and the third Respondent are working as

clerk-cum-cashiers with the first respondent Bank (Rewa Sidhi

Gramin Bank). The appellant is at serial No.9 and third

respondent is at serial No.10 in the seniority list of senior clerks

cum cashiers published on 31.7.1988. There is no dispute that

the third respondent is junior to appellant in the cadre of clerk-

cum-cashier.

2. The promotions of employees of the first Respondent

Bank (for short 'the Bank') are governed by the Regional Rural

Banks (Appointment & Promotion of Officers and other

employees) Rules, 1988 (for short 'rules') made by the Central

Government in exercise of the power conferred by Section 29

read with section 17 of the Regional Rural Banks Act, 1976.

Rule 5 provides that all vacancies shall be filled by deputation,

promotion or by direct recruitment in accordance with the

provisions contained in the second Schedule. Rule 10 requires

the Board of Directors of each Regional Rural Bank to

constitute from time to time Staff Selection Committees in the

manner provided therein for the purpose of selecting candidates

for appointment by direct recruitment or promotion to the posts

referred to in the second Schedule. It also requires the Staff

Selection Committee to follow the procedure as determined by

the Board for selecting the candidates for appointment or

promotion in accordance with the guidelines issued by the

Central Government from time to time.

3. Entry 5 of the second Schedule to the Rules relates to

Field Supervisors. It provides the source of recruitment as 50%

by direct recruitment and 50% by promotion on the basis of

seniority-cum-merit (from amongst confirmed senior clerk-

cum-cashiers, junior clerk-cum-cashiers, or clerk-cum-typists,

stenographers and steno typists with the prescribed minimum

periods of service). For direct recruitment, the mode of

selection is 'written test and interview'. The method prescribed

for ascertaining the minimum necessary merit required for

promotion by seniority-cum-merit is 'interviews and

assessment of performance reports for the preceding 3 years'.

4. The promotions were made by the Bank in accordance

with the promotion policy contained in the circular dated

2.2.1989. The circular stated the object of the promotion policy

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thus:

"The object of the policy which is based on the principle of

Seniority-cum-merit is to provide motivation and ensure

carrier movement for Bank Staff. Apart from seniority,

merit based on performance coupled with weightage for

placement/posting in comparatively inconvenient areas,

will be the determining factors for promotion."

Chapter 3 of the said promotion policy dealing with promotions

to the post of Field Supervisors is extracted below :

"FROM SENIOR CLERK/CASHIER OR JUNIOR

CLERK/CASHIER OR CLERK/TYPIST OR

STENO/TYPIST TO FIELD SUPERVISOR.

Promotion from Senior Clerk/Cashier or Junior

Clerk/Cashier or Clerk/Typist or Steno/Typist to Field

Supervisor subject to satisfaction of minimum period of

service shall be, at present on the basis of assessment of his

overall performance based on appraisal reports on him and

his potentiality to shoulder higher responsibilities assessed

in the interview duly supplemented by weightage for

seniority placement/posting as detailed herein below :

Percent weightage for various promotion criteria as

mentioned above will be as follow :

Total

Marks

Seniority

Posting at

Rural Centres

Posting at

difficult

Centres

Performance

Interview

100

20

10

5

40

25

3.1 Seniority :

Two marks for each completed year of service as Senior

Clerk/Cashier and one mark for each completed year of

service as Junior-Clerk/Cashier/Typist/Steno/Typist subject

to a maximum of 20 marks.

3.2 Posting at rural centers.

Two marks for each completed year of service in rural

center with a maximum of 10 marks.

3.3 Posting at difficult centers.

One mark for each completed year of posting at difficult

center (difficult centers to be identified by the Chairman

and approved by the Board) with a maximum of 5 marks.

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3.4 Performance/Appraisal

Performance will be assessed through the appraisal reports

annually received from his superiors in such form as may

be specified by the Chairman from time to time. Marks will

be awarded at the rate of 8 marks each for annual appraisal

ratings for the appraisal of preceding 3 years period with

the maximum of 24 marks and 16 marks for overall

performance of the Staff (maximum 16 marks).

Performance, on the basis as stated above, will be assessed

by a Staff Selection Committee constituted by the Board

for this purpose from time to time.

3.5 Interview :

(a) The Staff Selection Committee constituted by the

Board for the purpose of promotion, will also work

as Interview Committee.

(b) The Maximum marks for interview will be 25. By

and large, the candidates who have been found

eligible will be interviewed in respect of (1)

Personality (2) Poise and Manner (3) Power of

expression (4) Emotional Stability (5) Job

Knowledge including knowledge of Banking (with

reference to the functions/role of Regional Rural

Banks) (6) General Knowledge (7) Initiative (8)

Leadership quality (9) Potential and suitability and

overall assessment.

3.6. Candidates who have secured less than 40% marks

in interview will not be considered for promotion and their

names will not be included in the final merit list.

3.7. The list of successful candidates in the order of total

marks obtained will be placed by the Staff Selection

Committee before the Board, duly recommended for

consideration for appointments or promotion."

5. On 3.7.1991 the appellant's juniors were promoted as

Field Supervisors. The appellant was not promoted. He

therefore filed W.P. No.4485/1993 in the High Court of

Madhya Pradesh, challenging the promotion of two of his

juniors (third respondent herein and one V.P. Singh) on the

ground that the Bank had failed to make promotions on the

basis of seniority cum merit, prescribed under the Rules, and

had made promotions on the basis of merit cum seniority

contrary to the rules. Appellant contended that the procedure

whereby only 20 marks were allocated to seniority and 80

marks were allocated for other factors for the purpose of

assessment, and promoting those who secured the highest

marks on the basis of such assessment of overall performance,

clearly demonstrated that the promotions were not on the basis

of seniority cum merit.

6. The Bank resisted the said petition by contending that the

promotions were made on the basis of seniority cum merit and

not on merit cum seniority, in accordance with the Promotion

Policy dated 2.2.1989. It contended that the promotion policy

took note of seniority also by earmarking 20 out of 100 marks

for seniority and therefore the procedure adopted by the bank

for promotions to the post of Field Supervisor should be

considered as seniority cum merit. It was not disputed that the

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comparative merit of the candidates was assessed with

reference to performance appraisal, interview, posting at

rural/difficult centres and that the persons securing highest

marks in the order of merit were recommended for

consideration for promotion.

7. A learned Single Judge of the Madhya Pradesh High

Court allowed the Appellant's writ petition by order dated

13.10.1998 following the decision of this Court in B.V. Sivaiah

& Ors. V. K. Addanki Babu [1998 (6) SCC 720]. He held that

the promotions had been made not on the basis of seniority cum

merit, but on the basis of merit-cum-seniority. Consequently,

the promotion of third respondent herein and V.P. Singh were

quashed with a direction to the Bank to consider the case of

appellant for promotion to the post of Field Supervisor, along

with other eligible candidates. The said order of the learned

Single Judge was challenged by the third respondent and V. P.

Singh in a Letters Patent Appeal which was dismissed on

2.12.1998. It is stated that the special leave petition filed against

the decision in the Appeal was also dismissed.

8. As no action was taken in pursuance of the said decision,

the appellant filed a contempt petition on 31.1.1999. The said

petition was disposed of by the High Court, on 10.5.1999,

recording the assurance of the Bank that the case of the

appellant will be considered and appropriate orders will be

passed within one month. Thereafter the bank again passed an

order of promotion dated 14.6.1999 promoting the third

respondent to the post of Field Supervisor. Appellant was not

promoted.

9. The appellant, therefore, once again approached the

Madhya Pradesh High Court in W.P. No.2800/1999 challenging

his non-promotion, contending that the bank has not made

promotion on the basis of seniority cum merit. He contended

that the Bank had failed to follow the decision of this Court in

SIVAIAH and the decision in his own case. He contended that

even under the basis of merit-cum-seniority adopted by the

Bank, he was entitled to promotion on the total percentage of

marks secured by him and he had been deliberately failed in the

interview to deny him promotion. The appellant stated that he

had secured the following marks in the assessment made for

promotion :

Criteria

Total

marks

Marks secured

by appellant

Seniority

20

16

Posting at rural centres

10

10

Posting at difficult centres

5

3

Performance

40

24

Interview

25

9

TOTAL

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100

62

10. The bank resisted the second petition also. It contended

that the Departmental Promotion Committee had considered the

case of the appellant and other eligible candidates in terms of

the promotion policy contained in its circular dated 2.2.1989 by

assessing appellant's performance and interviewing him. The

Bank contended that, as per the promotion policy, the

candidates who secure less than 40% of the 25 marks allocated

for interview will not be considered for promotion; that only

those who got 10 marks and above in the interview, were

eligible for promotion; and that appellant who had secured only

9 marks in interview was thus not eligible for promotion.

11. A learned Single Judge of the MP High Court dismissed

the appellant's writ petition (WP No. 2800/1999) by order

dated 26.4.2000. He held that in Sivaiah's case (supra), this

Court had accepted the fixation of minimum standard for

assessing merit and a candidate who fails to fulfil the said

minimum standard cannot be promoted. The learned Single

Judge held that the appellant was not promoted, as he failed to

secure the prescribed minimum for interview. The learned

Single Judge was of the view that the method evolved for

adjudging the minimum merit was in consonance with the

principle of seniority-cum-merit, and the appellant having failed

in interview for promotion, he was not entitled to any relief.

12. The appellant challenged the said order before the

Division Bench which rejected the LPA by judgment dated

23.8.2001 affirming the decision of the learned Single Judge. It

held that the criteria adopted by the employer by prescribing

minimum qualifying marks for interview for determining the

suitability of the candidate for promotion was just and

reasonable and the appellant having failed to secure the

minimum marks in the interview, was rightly not promoted.

Both the single Judge and the Division Bench purported to

follow the principle laid down in para 37 of the Judgment in

SIVAIAH (supra). The said decision of the Division Bench of

the High Court is challenged in this appeal by special leave.

13. As both parties have relied on the decision in Sivaiah

(supra), we may start by referring to the relevant observations

therein. The decision in SIVAIAH was a common judgment

which considered the meaning of the criterion 'seniority-cum-

merit' for promotion. The decision dealt with several distinct

batches of cases relating to different Regional Rural Banks,

which had different promotion policies, that is Rayalaseema

Grameena Bank, Pinakini Grameena Bank, Bastar Kshetriya

Gramin Bank, Rewa Sidhi Gramin Bank (respondent herein)

and Chhindwara-Seoni Kshetriya Gramin Bank.

The High Courts had taken the view that if "seniority-cum-

merit" criterion is adopted for the purpose of promotion, then

first the seniormost eligible employee has to be tested to find

out whether he possesses the minimum required merit for

holding the higher post and only if he is not found suitable or

fit, his immediate junior ma be tested for the purpose of

promotion. The said view was assailed before this Court by the

various regional rural banks as well as the promoted officers

whose promotions had been set aside by the impugned

judgments of the High Court.

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This Court noted that in the matter of formulation of a policy

for promotion to a higher post, the two competing principles

which may be taken into account are inter-se seniority and

comparative merit of employees who are eligible for promotion.

This Court observed :

"In Sant Ram Sharma vs. State of Rajasthan (AIR 1967 SC

1910), this Court has pointed out that the principle of

seniority ensures absolute objectivity by requiring all

promotions to be made entirely on grounds of seniority and

that if a post falls vacant, it is filled by the person who had

served longest in the post immediately below. But the

seniority system is so objective that it fails to take any

account of personal merit. It is fair to every official except

the best ones. An official has nothing to win or lose

provided he does not actually become so inefficient that

disciplinary action has to be taken against him. The

criterion of merit, on the other hand, lays stress on

meritorious performance irrespective of seniority and even

a person, though junior but much more meritorious than his

seniors, is selected for promotion. The Court has expressed

the view that there should be a correct balance between

seniority and merit in a proper promotion policy. The

criteria of "seniority-cum-merit" and "merit-cum-seniority"

which take into account seniority as well as merit seek to

achieve such a balance."

This Court also noted that while the principle 'seniority-cum-

merit' lays greater emphasis on seniority, 'merit-cum-seniority'

laid greater emphasis on merit and ability and seniority plays a

less significant role, becoming relevant only when merit is

approximately equal. After referring to several decisions

bearing on the issue, this Court enunciated the following

general principle in regard to promotions by seniority cum

merit (at para 18) which is relied on by the Appelllant :

"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."

Thereafter, this Court took up the cases of each Bank

separately. While dealing with the case relating to Chhindwara-

Seoni Kshetriya Gramin Bank, this Court observed thus (in

para 37) which is relied on by the Respondents :

"During the course of hearing of the appeal, the learned

counsel for the respondent-Bank has placed before us the

relevant documents relating to the impugned selection and

promotion. On a perusal of the said documents, we find that

50 marks out of the total of 100 marks were prescribed as

the minimum qualifying marks for interview and only those

who had obtained the qualifying marks in interview were

selected for promotion on the basis of seniority. It was,

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therefore, a case where a minimum standard was prescribed

for assessing the merit of the candidates and those who

fulfilled the said minimum standard were selected for

promotion on the basis of seniority. In the circumstances, it

cannot be said that the selection has not been made in

accordance with the principle of "seniority-cum-merit". We

are, therefore, unable to uphold the impugned judgment of

the High Court. The appeal has to be allowed and the

impugned judgment of the High Court dated 7.2.1997

passed by the learned Single Judge of the High Court has to

be set aside and the promotion of the appellant on the post

of Area/Senior Manager under order dated 8.4.1993 has to

be affirmed."

14. Before considering the effect of observations in para 37

of the decision in SIVAIAH, relating to Chindwara-Seoni

Kshetriya Gramin Bank, let us refer to what this Court held

with reference to other Banks :

(i) Rayalaseema Grameena Bank had adopted a system of

assessment where weightage to be given (total of 120

marks) was divided into seniority (34 marks),

qualification (10 marks), interview (20 marks) and

performance (56 marks). Only those officers who had

secured the higher number of marks were ultimately

promoted. On these facts, this Court held :

"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. In the circumstances, it must be

held that the High Court has rightly come to the

conclusion that the mode of selection that was in

fact employed was contrary to the principle of

"seniority-cum-merit" laid down in the Rules."

(ii) Pinakini Grameena Bank had adopted a system of

assessment where weightage to be given (total of 100

marks) was divided into seniority (55 marks), passing

CAIIB (5 marks) performance (25 marks) and interview

(15 marks). Only those who secured highest number of

marks were promoted. This Court held :

"The said circular did not prescribed 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 the 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-seniority".

(iii) Bastar Kshetriya Gramin Bank made selections on the

basis of interview of all the eligible officers by the Staff

Selection Committee and a select list of five persons was

prepared and on that basis promotions were made. This

Court held :

"It is not disputed that the selection 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

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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."

15. Thereafter, this Court considered the case of the first

Respondent Bank itself (in paras 33 to 35). There also the bank

relied on the very same promotion policy contained in circular

dated 2.2.1989 (with which we are concerned) for promotion to

the post of Area/Senior Manager by seniority cum merit. The

promotion policy provided that the promotion from the post of

officer to Area/Senior Manager shall be on the basis of his

overall performance based on appraisal reports and his

potentiality shall be assessed in the interview, duly

supplemented by weightage for job responsibility, placement,

posting mobility etc. 100% weightage was divided into

seniority (15 marks), job responsibility (12 marks),

placement/posting mobility (8 marks), performance (40 marks)

and interview (25 marks). As in the case of promotion to the

post of Field Supervisors, the policy provided that the

candidates who secure less than 40% of the marks allocated for

interview, shall not be considered for promotion and the list of

successful candidates in the order of total marks obtained will

be placed by the Staff Selection Committee for consideration

for promotion. The challenge to the promotion of Area/Senior

Managers on the above basis was upheld by the learned Single

Judge and confirmed in Appeal b the Division Bench. This

Court dismissed the appeals on the following reasoning :

"For the same reasons, civil appeals arising out of Special

Leave Petition [C} Nos.19965-19966 of 1997 are also

liable to be dismissed inasmuch as according to the

promotion policy dated 2.2.1989, selection was made on

the basis of the total number of marks obtained by the

eligible candidates. The criterion of the promotion policy

cannot be regarded as being in consonance with the

principle of "seniority-cum-merit" as prescribed under the

Rules."

16. It is thus clear that this Court did not accept the

promotion policy contained in circular dated 2.2.1989 as being

in consonance with the principle of seniority-cum-merit. This

Court held that the policy which did not prescribe a minimum

standard for assessing merit and which promoted candidates on

the basis of comparative merit, with reference to total marks

obtained by the eligible candidates, followed the merit-cum-

seniority principle. The decision in SIVAIAH relating to

Area/Senior Managers of the first respondent bank was

followed by the High Court in the case of appellant, in its

judgment dated 13.10.1998 and it was held that the procedure

adopted by the first respondent bank for promotion of third

Respondent and V.P. Singh as per circular dated 2.2.1989 was

contrary to the Rules which required promotions by seniority-

cum-merit, and the bank was directed to redo the promotions by

considering the case of appellant and other eligible candidates

by adopting the criteria of seniority cum merit. That decision

attained finality as the appeal and SLP were rejected. It may be

stated that even prior to the decision in SIVAIAH relating to

Area/Senior Managers of the first respondent bank, the same

view had been expressed in the earlier judgment dated

9.10.1996 of the Division Bench of the Madhya Pradesh High

Court in LPA No.151/1996 and connected cases and civil

appeals arising out of SLP (c) Nos.17780-81/1997 filed against

the said judgment dated 9.10.1996 had been dismissed.

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Therefore we have several rounds of litigation which had been

fought up to this court where the High Court and this court have

repeatedly and clearly held that the procedure prescribed, in the

promotion policy circular dated 2.2.1989, is not in consonance

with the principle of seniority-cum-merit prescribed for

promotion under the Rules but amounted to following the

principle of merit cum seniority and therefore vitiated. What is

surprising is that, in spite of these decisions, the first respondent

bank again adopted the very same procedure contained in the

promotion policy of 2.2.1989 and again failed to promote the

appellant by assigning him marks of 16 (20), 10 (10), 3(5), 24

(40) and 9 (25) and held that he was not eligible for promotion

as he did not secure the minimum marks of 10 prescribed for

interview. But, admittedly, there was no overall minimum and

the procedure required assessment of comparative merit. This is

not therefore a case of the appellant failing to secure the

minimum necessary merit required for promotion but a case

where the appellant's entitlement to promotion was sought to

be assessed by adopting a procedure which allotted 20 marks

for seniority, 40 marks for performance, 15 marks for posting at

rural and difficult centres and 25 marks for interview. The bank

has persisted in adopting the merit-cum-seniority procedure in

spite of the decisions of this Court in several rounds of

litigation referred to above. As the entire promotion procedure

adopted by the bank as per its policy dated 2.2.1989 has stood

rejected by the High Court and this court in SIVAIAH (supra)

as also in the earlier round of litigation of Appellant, the

promotion of third Respondent and non-promotion of appellant

by adopting the very same procedure is liable to be interfered

with.

17. Interviews can be held and assessment of performance

can be made by the Bank in connection with promotions. But

that can be only to assess the minimum necessary merit. But

where the procedure adopted, does not provide the minimum

standard for promotion, but only the minimum standard for

interview and does the selection with reference to comparative

marks, it is contrary to the Rule of 'seniority-cum-merit'. This

aspect of the matter has been completely lost sight of by the

learned Single Judge and the Division Bench of the High Court

in this round of litigation. As noticed above, they have

proceeded on the basis that the appellant having failed to secure

the minimum marks prescribed for interview, was rightly

denied promotion, by ignoring the principle laid down by this

court in SIVAIAH in regard to seniority-cum-merit. At all

events, as the promotion policy adopted by the Bank was held

to be illegal in the earlier round of litigation (W.P. No.

4485/1993 dated 13.10.1988), the Bank could not have adopted

the same policy to again reject the Appellant for promotion. We

may also note that the law laid down in SIVAIAH was

reiterated in Sher Singh vs. Surinder Kumar [1998 (9) SCC

652] wherein this Court had occasion to consider a similar

question relating to the promotion for the post of clerk to Field

Supervisor in the case of another Gramin Bank. This Court

held that as the criterion for making promotion from the post of

clerk to that of Field Supervisor was seniority-cum-merit but

the Bank did not follow the criterion of seniority-cum-merit but

made promotions on the basis of merit-cum-seniority, the

promotion was vitiated and therefore invalid.

18. We will now deal with para 37 in SIVAIAH (supra)

relied on by the Respondents. Para 37 related to Chhindwara-

Seoni Kshetriya Gramin Bank where the procedure adopted for

promotion was different from the criteria that was adopted by

the Rewa Sidhi Gramin Bank, first respondent herein. In the

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case of Chhindwara Seoni Kshetriya Bank, the assessment of

minimum necessary merit was by interview. The candidate who

secured a minimum of 50 out of 100 marks in the interview,

was selected for promotion on the basis of seniority. It was thus

found to be a case where minimum standard was prescribed for

assessing the merit of the candidates and those who qualified by

securing the minimum marks (50%) were promoted strictly as

per seniority. Thus, it was in consonance with the principle of

seniority-cum-merit. Therefore, the observations in para 37 of

SIVAIAH are of no assistance to Respondents. As we have

already noticed, in this case, the procedure is not one of

ascertaining the minimum necessary merit and then promoting

the candidates with the minimum merit in accordance with

seniority, but assessing the comparative merit by drawing up a

merit list, the assessment being with reference to marks secured

for seniority, performance, postings at rural/difficult places and

interview. The fact that the appellant had failed to secure the

minimum marks in interview, is not relevant as the entire

procedure adopted by the bank (of which interview is a part) is

found to be vitiated and not in consonance with the principle of

seniority cum merit.

19. In this view of the matter, we do not propose to go into

the contention of the appellant that though he had secured very

high percentages (overall 62%), with the intention of

deliberately denying him promotion, he had been failed in

interview by giving him 9 marks as against the minimum of 10

for interview.

20. The learned counsel for the Bank placed reliance on the

decision of this Court in K. Samantaray vs. National

Insurance Co. Ltd., [2004 (9) SCC 286), where this Court

following the earlier decision in Syndicate Bank SC & ST

Employees Assn. Vs. Union of India [1990 Supp.SCC 350],

reiterated that apart from the recognized methods of seniority-

cum-merit and merit-cum-seniority, there can also be a third

method, that is a hybrid mode of promotion. This Court

observed :

"While laying down the promotion policy or rule, it is

always open to the employer to specify the area and

parameter of weightage to be given in respect of merit and

seniority separately so long as policy is not colourable

exercise of power, nor has the effect of violating any

statutory scope of interference and other relatable matters."

But in that case promotions were not governed by any statutory

Rules, but by a promotion policy. The above observations made

with reference to such a policy, which wholly occupied the field

insofar as promotion is concerned, are not relevant where the

statutory Rules require promotion by seniority-cum-merit.

21. The next question that arises for consideration is the

relief to be granted. The appellant was first considered for

promotion during 1991 and was not promoted, by wrongly

adopting the principle of merit-cum-seniority. The said

procedure was found to be erroneous by the Single Judge,

Division Bench and by this court. The Bank was directed to

consider the case of Appellant for promotion on the basis of

seniority-cum-merit. Thereafter, in the contempt proceedings

initiated by the appellant, the Bank undertook to comply with

the order directing consideration of the appellant's case by the

procedure of seniority cum merit. But the Bank, again by

adopting the merit-cum-seniority method, failed to promote the

appellant and promoted third respondent. The procedure

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adopted by the Bank had been found to be faulty on three

occasions by this Court and the High Court, one of which was

in the case of Appellant himself. The appellant had been denied

promotion for more than 16 years by repeatedly adopting such

an erroneous procedure. In the circumstances, we do not think it

necessary to drive the appellant once again to face the process

of selection for promotion. This Court in Comptroller and

Auditor General of India v. K.S. Jagannathan [1986 (2)

SCC 679] observed thus :

"There is thus no doubt that the High Courts in India

exercising their jurisdiction under Article 226 have the

power to issue a writ of mandamus or a writ in the nature of

mandamus or to pass orders and given necessary directions

where the government or a public authority has failed to

exercise or has wrongly exercised the discretion conferred

upon it by a statute or a rule or a policy decision of the

government or has exercised such discretion mala fide or

on irrelevant considerations or by ignoring the relevant

considerations and materials or in such a manner as to

frustrate the object of conferring such discretion or the

policy for implementing which such discretion has been

conferred. In all such cases and in any other fit and proper

case a High Court can, in the exercise of its jurisdiction

under Article 226, issue a writ of mandamus or a writ in the

nature of mandamus or pass orders and given directions to

compel the performance in a proper and lawful manner of

the discretion conferred upon the government or a public

authority, and in a proper case, in order to prevent injustice

resulting to the concerned parties, the court may itself pass

an order or give directions which the government or the

public authority should have passed or given had it

properly and lawfully exercised its discretion."

Having regard to the factual background of the case, and having

regard to the fact that even under the merit cum seniority basis

adopted by the bank the appellant had secured high marks and

he was denied promotion on the ground that he failed to secure

minimum marks in the interview, there is no need to refer the

matter for fresh consideration. With a view to do complete

justice, in exercise of our power under Article 142 we hereby

direct the first respondent bank to promote the appellant as a

Field Supervisor, from the date the third defendant was

promoted as Field Supervisor and place him above the third

Respondent. However, he will be entitled to monetary benefits

flowing from such promotion only prospectively, though the

pay is to be refixed with reference to the retrospective date of

promotion.

22. This appeal is allowed accordingly.