HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on : 15.03.2024

Pronounced on : 26.07.2024

Case:- WP(C) No. 74/2024

Javeed Ahmad Sheikh and others

…..Petitioners

Through: Mr. Azhar-ul-Amin, Advocate with

Mr. Mubashir Masood, Advocate

Vs

Jammu & Kashmir Bank Limited and others

.…. Respondents

Through: Mr. Shafqat Nazir, Advocate with

Mr. Younis Hameed, Advocate

Case:- WP(C) No. 130/2024

Mir Sumeera and others

Through: Mr. Owais Shafi, Advocate

Vs

Jammu & Kashmir Bank Limited and others

.…. Respondents

Through: Mr. Shafqat Nazir, Advocate with

Mr. Younis Hameed, Advocate

Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGMENT

2024:JKLHC-SGR:303

2 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

WP(C) No. 74/2024

01. A Roman philosopher Lucretius’s quote “One man’s food

is another man’s poison,” is a very serving one to introduce as to

what is the issue involved in the present writ petition filed by fifty

petitioners feeling similarly aggrieved that they, as a sub-class in

the context of their service, have been subjected uninformed to a

promotion related test meant for another sub-class of employees

contrary to the promotion policy itself admitting of differential

promotion test to the said two sub-classes thereby rendering them

discriminated and purportedly denied of promotion prospect under

seniority cum selectivity channel.

02. The facts of the present case are hardly admitting of any

dispute/denial as the controversy zooms on “Policy for Promotion

of Workmen (Banking Associates, Assistant Banking Associates

and Banking Attendants)”, (hereinafter to be referred in short as

“the Policy”).

03. The petitioners are Banking Associates on the regular

establishment of the respondent No.1–Jammu & Kashmir Bank

Limited (hereinafter to be referred in short as “the Bank”). Next

level of promotion for a Banking Associate in the respondent No. 1-

the Bank is an Assistant Manager (Cadre) also known as JMG S-1

(Officer Cadre). 2024:JKLHC-SGR:303

3 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

04. The establishment of the respondent No. 1- the Bank came

forward with an exercise for promotion captioned as “Career

progression of Banking Associates for the position of Assistant

Manager Cadre”, by virtue of communication No. JKB/Rectt/2023-

792 dated 21.09.2023 inviting the Banking Associates fulfilling the

criteria to be eligible for the Career Progression from Banking

Associates to Assistant Manager (Cadre) and, accordingly, invited all

the eligible Banking Associates, except ineligible under service rules

and/or under investigation in FIR No. 10/2019 and FIR No.

01/2020 Anti-Corruption Bureau, Jammu , to submit their

respective willingness in the prescribed manner and thereupon to

wait for the dates for online test of eligible candidates under Fast-

track and Screening Channel to be notified separately to be then

followed by interview dates for promotion upon culmination of

online test under Fast-track and Screening Channel. It is with

respect to the purported screening test which came to be slapped

upon the petitioners that left them aggrieved to be in the present

writ petition as under the guise of screening test they came to be

made to suffer written test not meant for them .

05. Before coming to the precipitating situation resulting in

cause of action leading the petitioners to petition this court with the

present writ petition, the Policy prescribed by the respondent No. 1- 2024:JKLHC-SGR:303

4 WP(C) No. 74/2024

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WP(C) No. 130/2024

the Bank governing the promotion process related with the

petitioners, and of course with other two classes of Banking

Associates, needs to be referred for the sake of drawing its

understanding. A copy of the Policy is accompanying the writ

petition.

06. The Policy is in its version 2.0. The Policy originated on

23.10.2019 and came to be renewed on 23.10.2021 followed by a

review on 26.02.2022 before getting final approval by the Board of

Directors of the respondent No. 1 – the Bank on 13.07.2022, coming

into effect w.e.f. 01.04.2022 started with promotion process for the

year 2022-23 and onwards so as to come to hold the field.

07. The Policy is in two (2) parts i.e. Part-1 and Part-2 set in

number of clauses.

08. Part-1 of the Policy deals with the “Procedure for

promotion for Banking Associates to JMGS -1 (Officer Cadre)”

and it is with this part that the subject matter of the present writ

petition is related with.

09. Clause 4 of the Policy provides for eligibility and

qualification and is reproduced hereunder:-

“4. Eligibility and Qualification: This policy being broader in

scope covers the promotions of:

i. Banking Associate Cadre to JMG Scale –I (officer cadre). 2024:JKLHC-SGR:303

5 WP(C) No. 74/2024

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WP(C) No. 130/2024

ii. Assistant Banking Associate Cadre to Banking Associate

Cadre.

iii. Banking Attendant Cadre to Assistant Banking Associate

Cadre.”

10. Clause 4.1 provides for eligibility & qualification for

promotion from Banking Associate to (JMGS-1) Officer Cadre and

the same is also reproduced hereunder:-

“4.1 Eligibility & Qualification for promotion from Banking

Associate to (JMGS-1) Officer Cadre :-

a) Under Seniority cum Selectivity Channel:

Banking Associates appointed after qualifying IBPS

examination, having completed Seven (7) year s of regular

service or more as on 31

st of March of the preceding financial

year, shall be eligible for promotion to JMGS-1 under seniority

cum selectivity channel.

However, Banking associates who are graduates, but are

appointed in the services of the bank either on compassionate

grounds or by virtue of being promoted from sub-ordinate

cadre, and have completed 7 years of service in the general

cadre of Banking Associates, shall mandatorily have to go

through an eligibility screening written test (objective type)

* for

participation in the promotion process under seniority cum

selectivity channel.

*Minimum qualifying marks in written eligibility

screening test for participating in the interview shall be

40% for General candidates and 35% for reserved

category candidates.

b) Under Fast Track/Merit Channel:

All Banking Associates who have successfully completed

Three(3) years of regular services as on 31

st March of the

preceding financial year, shall be eligible for participation in

the promotion process under Fast Track / Merit Channel. 2024:JKLHC-SGR:303

6 WP(C) No. 74/2024

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WP(C) No. 130/2024

An employee shall be eligible to participate in promotion

process under Fast Track / Merit Channel upto a maximum

of three times.

11. Part-1 which is meant for promotion for Banking Associate

to Officer Cadre (JMGS-1), is spread in clause 5 sub-claused into 1

to 5 and the same is also reproduced hereunder for facility of

reference:-

“5. Part-I Promotion of Banking Associate to Officer Cadre (JMGS -1)

5.1 Selection process for filling vacancies in JMG Scale-1

The vacancies in JMG Scale -1 shall be filled as under:

a) By promotions from Banking Associate cadre – 80%

b) By Direct Recruitment – 20%

5.2 Promotions from the Banking Associate Cadre.

The vacancies in JMG Scale-I shall be filled up by promotion

from Banking Associate cadre through Seniority cum Selectivity

Channel and Merit/Fast Track Channel in the ration of 3:1. The

employees in the Banking Associate cadre will have the option to

apply for promotion under only one channel in an annual

promotion cycle.

Highlights of the two channels are as under:-

Particulars

Seniority-cum-

Selectivity

channel

Merit/ Fast

Track Channel

Distribution of vacancies 75% 25%

Residency (actual length

of regular service in BAS-

cadre)

7 years 3 years

Selection parameters: Max. Marks Max. Marks 2024:JKLHC-SGR:303

7 WP(C) No. 74/2024

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WP(C) No. 130/2024

 APAR 30 30

 Interview/ Potential 60 60

 Written Test (online)



NA Qualifying only

 Addl. Qualifications

(Post-graduation/JAIIB/CAIIB/

CA/ICWA/CS, Phd./M.Phil/MBA

& B&F)

10 10

Total 100 100



Note: Minimum qualifying marks in written test for promotions in

fast track/merit channel shall be 40% for General candidates &

35% for reserved category candidates.

5.3 Direct Recruitment

The procedure for filling of vacancies in officer (JMGS-1) cadre

through direct recruitment is covered under Recruitment policy

of the Bank.

5.4 Selection parameters

The selection parameters to be considered for promotion from

Banking Associate Cadre to JMG Scale-I are defined below:

5.4.1 APAR:

The Annual Performance Assessment Reports (APAR)

marks for the immediate preceding 3 years shall be

considered for the purpose of awarding marks for

promotion, as indicated at Para 5.2.

5.4.2 Potential/Interview:

The candidates, 1.5 times the number of vacancies

available, will be called for interview



in order of their

seniority as per the seniority list published by the bank.

The departmental promotion committee (DPC) shall be

nominated by the MD & CEO for conducting the

interviews of the eligible candidates.



Note: Under Seniority cum Selectivity Channel the

eligible pool for interview shall be created on the basis

of Seniority & under Fast Track Channel it shall be on

the basis of merit obtained in the written test. (In

case of a tie between the candidates in written 2024:JKLHC-SGR:303

8 WP(C) No. 74/2024

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WP(C) No. 130/2024

examination, senior most candidate will be considered

to be called for interviews).

5.4.3 Written Test: (Fast Track Channel)

Written test shall be conducted through IBPS Mumbai or

other reputed external agency which conducts online

examinations for different employers in the banking

industry. The written test (objective type) of 100 marks

shall be based on:

Banking Awareness : 25 Marks

Clerical Aptitude : 25 Marks

Computer Literacy : 25 Marks

English Comprehension : 25 Marks

Willingness shall be sought from all the eligible Banking

Associates to appear for the written test. However, only

those candidates who conform to the prescribed norms

shall be eligible to appear in the written test.

MD & CEO shall be authorized to designate the agency to

conduct the online examination.

Higher / Professional Qualification

02 Marks

02 Marks

02 Marks

02 Marks

02 Marks

02 Marks



(B&F) as on additional post-graduation.

Marks for additional qualifications are subject to a

maximum of 10 marks.

5.5 Eligibility Pool

5.5.1 The Board of Directors shall be the sole authority for

approving any deviation of the parameters, set in this

policy. 2024:JKLHC-SGR:303

9 WP(C) No. 74/2024

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WP(C) No. 130/2024

5.5.2 For Promotion from Banking Associate to officer cadre

(JMGS-1), under fast track/merit channel, there shall be

no bar on number of eligible candidates to be called for

written examination.

5.5.3 For appearing in the promotion process through any of

the channels the residual service should not be less than

6 months as on date of notification.

5.5.4 An employee who has not been selected for promotion to

the next higher cadre under seniority cum selectivity

channel three times, shall not be eligible for participation

in promotion process for next annual promotion cycle,

subsequent to which, the employee shall again be allowed

to participate in the following Promotion cycles.”

12. Since the Policy is relating in terms of its Part-1 exclusively

to promotion of the Banking Associates, as such, Banking

Associates ought to have been a single class for the purpose of

promotion in the routine course of things, but the respondent No. 1

– the Bank chose to split said single class of Banking Associates for

the purpose of promotion into two sub-classes.

13. One of two such sub-classes, and that comparatively being

a large class, is the which is to undergo promotion process under

Seniority-cum-Selectivity channel whereas other sub-class of

Banking Associates, being a small class, for whom avenues for

promotion is created under Fast Track/Merit Channel as is

provided under clause 4.1. 2024:JKLHC-SGR:303

10 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

14. Going by the very branding of the two sub-classes of the

Banking Associates, it is obviously meant that one sub-class of

Banking Associates is the one whose promotion is to follow seniority

principle competing for selection within themselves on their

respective merit in the said circle, whereas other sub-class of the

Banking Associate is the one which by seniority principle is to stand

no chance of promotion to the Assistant Manager (Cadre) being

short of seven(7) years but more than three(3) years of service, and,

therefore, a small share of posts i.e. 25% carved out for non-

seniority placed Banking Associates who are fresh recruits having

completed three (3) years of regular service on 31

st March of the

preceding year.

15. First sub-class of Banking Associates eligible for

consideration for promotion under Seniority-cum-Selectivity

channel is further sub-classed into the ones who are Banking

Associates having completed seven (7) years or more o f regular

service and whose original appointments are with qualification of

IBPS examination and the other sub-class is that of those Banking

Associates who came to be appointed without IBPS exa mination

qualification, by the modes of appointment as prescribed in their

respective cases or who came to be promoted to be appointed as 2024:JKLHC-SGR:303

11 WP(C) No. 74/2024

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WP(C) No. 130/2024

Banking Associates from the subordinate cadre not meant to qualify

IBPS examination to earn promotion as Banking Associates.

16. The petitioners are the ones who fall in the second sub-

class of Banking Associates under Seniority-cum-Selectivity channel

as some of the petitioners are directly appointed Banking Associates

without being required to qualify IBPS examination at the relevant

point of time of their respective appointment and whereas some of

the petitioners are the Banking Associates having arisen from the

ranks.

17. For the petitioners, as non-IBPS Banking Associates,

bearing their respective places in the combined seniority list of

Banking Associates (IBPS & non-IBPS) to be considered for

promotion, a mandatory eligibility screening written test (objective

type) for participation in promotion process under Seniority-cum-

Selectivity channel is prescribed in which a non-IBPS Banking

Associate is required to get 40% marks under General category and

35% marks under Reserved category as minimum qualifying marks

to be eligible to join the pool of IBPS Banking Associates above

seven years of service to be considered for promotion and thereafter

on the assessment of the comparative /inter se merit on the

parameters as prescribed under clause 5.2, the promotion is to be

accorded notwithstanding the seniority position amongst the entire 2024:JKLHC-SGR:303

12 WP(C) No. 74/2024

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WP(C) No. 130/2024

pool of the Banking Associates under Seniority -cum-Selectivity

channel.

18. Thus, a Banking Associate, be it IBPS or non -IBPS, is

required to have seven(7) years or more of regular service by

reference to 31

st March of the preceding year to be a first

requirement for promotion consideration under Seniority-cum-

Selectivity channel and further for non-IBPS Banking Associates

qualifying eligibility screening written test (objective type) is an

additional requirement upon qualifying which all non-IBPS Banking

Associates with more than seven(7) years of service are then to be in

the pool of the Banking Associates IBPS with seven(7) plus years of

service to be considered for promotion. In this pool, it is the

comparative merit prescribed under selection parameters under

clause 5.2 which is to drive the final promotion by selection and not

by seniority and that is how Seniority-cum-Selectivity channel has

earned its name for the Banking Associates having more than seven

(7) years of service.

19. Insofar as the Banking Associates having completed three

years of service, be it IBPS or non-IBPS and who on the basis of the

seniority are not eligible to join 75% pool of Banking Associates

covered under Seniority-cum-Selectivity channel, are afforded an

opportunity of jump/leap promotion upon their participation in a 2024:JKLHC-SGR:303

13 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

qualifying examination and thereupon to be comparatively assessed

on merits on the selection parameters as provided under clause 5.2

20. Thus, it is as clear as sky that non -IBPS Banking

Associates with seven (7) years plus regular service aiming for

promotion and Banking Associates, be it IBPS or non-IBPS, having

less than seven(7) years of service but more than three years of

service as Banking Associates not eligible for competing under

Seniority-cum-Selectivity channel of promotion are constituting two

different species under genus Banking Associates. It is here where

the opening quote of Roman philosopher Lucretius that “One

man’s food is another man’s poison,” has come into play when

Banking Associates of two species have been subjected to undergo

same/common written test for qualification to be in the pool of

Banking Associates for promotion wherein the petitioners have

failed and have been left to feel duped by the fact that the test

meant for Banking Associates under Fast Track/Merit channel

came to be imposed upon them leaving them non-successful and,

accordingly, seeing the prospect of being ousted from lifetime

opportunity of promotion on the basis of their respective seniority

and denying them opportunity of competing on the strength of the

parameters as prescribed under clause 5.2. 2024:JKLHC-SGR:303

14 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

21. In the writ petition, the petitioners have averred that they

came to be issued call letters individually for “Eligibility Screening

Test,” whereas Banking Associates availing “Fast-track Channel”

promotion were called on “People‟s System” and the syllabus for the

written test was also put on the “People‟s System.” The petitioners

aver that they legitimately expected eligibility screening test for

them to be quite distinct from the written test meant to be

conducted by IBPS, Mumbai for the Fast-Track Channel Banking

Associate aspirants but the petitioners came to be taken by surprise

and caught in no man‟s land when they too were subjected to face

the same written test conducted by IBPS, Mumbai thereby bringing

them under the same umbrella in terms of test taking with those of

Fast-Track Channel Banking Associates and that set in the failure

for the petitioners in the test so taken.

22. The respondent No. 1 , joined by its officials as co-

respondents, came up with its reply/objections to the writ petition,

maintaining preliminary objection about the maintainability of the

writ petition on account of no violation of any right, constitutional

or statutory, of the petitioners and also reading estoppel against the

petitioners to challenge the procedure/policy of the respondent No.

1- the Bank through the medium of the writ petition which policy is

said to be based on intelligible differentia. 2024:JKLHC-SGR:303

15 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

23. On the factual side in their reply/objections, the

respondents assert that written test was conducted in conformity

with the promotion policy framed by the respondent No. 1 – the

Bank for promotion of Banking Associates to the Officers Cadre-I

(JMGS Grade-1) and, therefore, there is no occasion for the

petitioners to agitate any grievance. The respondents in their reply

have asserted that the petitioners cannot seek a screening test of

their choice and that screening examination is supposed to be on a

set pattern of IBPS, Mumbai.

24. Before proceeding further, this Court for the sake of

perspective, deems it needful to juxtapose para 14 of the writ

petition and reply to para 14 from the respondents‟ end.

Para 14 of the writ petition:- Reply to para 14 of the writ petition by the

respondents:-

14. The on-line screening test and

written examination for screening

channel and fast tract channel

respectively was scheduled to be

held on 04-12-2023 at 12.30pm.

The Petitioners were issued call

letters individually for eligibility

screening test and 3™ category

(fast track) was called on people‟s

system and the syllabus for the

written test was also put on the

people‟s system. The Petitioners

legitimately expected eligibility

screening test for them quite

distinct from the written test

conducted by IBPS Mumb ai for

fast tract channel, however, to

their shock and surprise the

Petitioners were subjected to the

11. That in reply to para 14, it is submitted

that the call letters are not material to the

issue raised in the writ petition. It is

submitted that it is admitted by the writ

petitioners that they fall in the category of

Banking Associates who have not passed

the IBPS examination due to nature of

their appointment in the respondent bank

and thus fall in the category of Banking

Associates who as per proviso to the rule

4.1(a) were required to mandatory

undergo through the eligibility screening

test (Objective type) for promotion process

under seniority cum selectivity channel by

scoring the minimum qualifying marks of

40% in general category and 35% in the

reserved category. The screening test did

not carry any scoring marks and was

meant only with the purpose to ensure all 2024:JKLHC-SGR:303

16 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

same written test conducted by

IBPS Mumbai. Thus, the

Petitioners, though distinct and

unequal from 3” category were

treated equally that caused gross

violence to equality clause

enshrined under article 14 of the

Constitution of India. A sample

call letter issued to the

Petitioners for screening channel

and circular dated 04-12-2023 is

attached herewith as Annexure-

IV & V.

the candidates who appear in the seniority

cum selectivity channel have IBPS exam

qualified before being inducted in the

officer‟s cadre. It is submitted that writ

petitioners cannot seek of their choice and

the screening examination has to be set

pattern of IBPS. The writ petitioners are a

different class in themselves on the basis

of the reasoning set in proviso rule 4 (a)

and thus have not been treated at par

with the Banking Associates who

appeared in fast track/merit channel

whose eligibility criteria was different than

that of writ petitioners. It is submitted

that there has been no violation of article

14 of Constitution of India and thus

cannot seek indulgence of this court on

matters which was purely matter of policy.

25. Mr. Azhar-ul-Amin, learned counsel for the petitioners

while arguing has summarized his submissions in the following

manner:-

a. The petitioners became eligible for promotion

consideration from “Banking Associate” to the Officers‟

Cadre Scale I (JMG Scale I) in the year 2019 onwards

under the old promotion policy with then prescribed

eligibility of 5 years‟ service as Banking Associate. In the

old policy there was only one class of “Banking Associate”

to be promoted to Scale I (JMG Scale I) based on

“seniority cum merit rule” However, since the petitioners

became due for promotion, the exercise of promoting

Banking Associates got deferred for no apparent reason.

The assessment of vacancies was a year wise process.

However, in the interregnum, the new promotion policy

was envisaged and finally approved by the Board on 13-

07-2022 and promotion process was set in motion vide 2024:JKLHC-SGR:303

17 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

Circular ID No.15876 of September 21, 2023 in terms of

this new Policy. All the year wise vacancies were clubbed.

b. Under the said new Policy eligibility for promotion of

Banking Associates to Scale I (JMG Scale I) was increased

from five years to seven years and Banking Associates

with 7 years were sub-classified into Banking Associates

(IBPS qualified) and Banking Associates (without IBPS).

Banking Associates (IBPS qualified) would directly go to

interview (as in the old policy) while as Banking

Associates (without IBPS) would undergo some eligibility

screening written test (objective type).

c. It is specifically provided under the Policy (5.4.2) that pool

of eligibility for this class would be created on the basis of

seniority, and it was called “Seniority cum selectivity

channel”.

d. The Policy for the first time introduced another channel

for promotion called Fast Track/ Merit Channel. Banking

Associate with 3 years of service is made eligible and no

classification on the basis of IBPS/Non IBPS is made

therein as was done in Seniority cum Selectivity channel.

Pool of eligibility for this class is to be created on the

basis of merit obtained in a written test to be conducted

by IBPS Mumbai. (Rule 5.4.2).

e. The Policy further clarifies under Rule 5.4.3 that the said

written test is meant for Fast Track Channel only and

provides for the name of Institution to conduct the said

test. The Rule also provide s for the scheme of

examination. 2024:JKLHC-SGR:303

18 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

f. The petitioners having 7 years or more service as Banking

Associates (without IBPS) applied within the cutoff date

for selection and consequent promotion in response to the

advertisement.

g. Call letters for Banking Associates (without IBPS) were

served individually for eligibility screening test while as

call letters for fast-track channel for conduct of merit test

to be conducted by IBPS Mumbai was put on “People‟s

System” to be downloaded by the concerned candidates.

h. The Policy envisages two pools of eligibility for promotion;

one of 7 years Banking Associates to be made/prepared

on the basis of seniority and the second of 3 years to be

made prepared on the basis of written merit test to be

conducted by IBPS Mumbai.

i. The Policy vividly recognizes and envisages two distinct

treatments in terms of making pool of eligibility. In the

former, seniority is the guiding factor and in the later the

merit obtained in the test prescribed under rule 5.4.3. In

the context and text of the Policy, the two treatments

must be qualitatively different. The test prescribed for

screening of the Banking Associates with 7 years‟

experience must be qualitatively different than the test to

judge merit of the 3 years‟ Banking Associates lest the

distinction in the quantity of service i.e. 7 years and 3

years gets obliterated which falls foul of Art. 14 of the

Constitution of India. The two distinct classes must not,

therefore, be subjected to qualitatively same test as has

been done in the case. 2024:JKLHC-SGR:303

19 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

j. The classification but similar treatment are both admitted

by the respondent- the Bank in their written response to

the writ petition but in oral argument the respondent No.

1-the Bank‟s counsel say that it is the Policy that

envisages similar test for both the classes and having not

challenged the Policy, the petitioners are estopped to

challenge the action of the bank. The formative

interpretation of the promotion policy, approved on 13-

07-2022 by the respondent No. 1 -Bank, in a very narrow

compass, thus, falls for consideration and interpretation

always belongs to the Court. The interpretation on the

Policy placed by the counsel of the respondent- the Bank

viz prescription of qualitatively same test to two different

classes of employees, is far too offensive to the Policy

itself and on top of that to the very concept of Art. 14 &

16 of the Constitution of India, hence, liable to be

avoided. An interpretation that advances equality is to be

adopted.

k. From the front page of the Policy, the Policy originated on

23-10-2019, but no promotions took place under the said

Policy till date. The petitioners, in terms of the old policy,

were eligible after putting in 5 years of service as

confirmed Banking Associates based on their seniority.

The process of promotion was in fact initiated vide

circular dated 07-06-2018. Some of the petitioners were

eligible for promotion to JMG Scale on 30-06-2018 (cutoff

date for eligibility fixed in the circular). The petitioners

were denied promotion all these years for no plausible

reason. The petitioners cannot and should not be

subjected to the new Policy that got implemented in the

year 2022. 2024:JKLHC-SGR:303

20 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

l. The whole process of selection has been conducted in

shrouded mystery with no transparency at all. Number of

posts were not advertised, ratio between Banking

Associates (without IBPS) and Banking Associates (with

IBPS) in “Seniority cum selectivity channel” is not

prescribed; ratio between Ladakh, Jammu and Kashmir

and rest of India is not prescribed. Empirical data

submitted by the respondent No. 1-Bank on asking of the

Court shows only 18 candidates from Banking Associates

(without IBPS) from “Seniority cum Selectivity Channel

have been called for interview as a result of recalcitrant

test from Kashmir and Ladakh and none fro m Jammu.

Assuming without admitting, respondents are not

motivated by a spite or ill will yet the acts of omission or

commission especially treating the petitioners equal with

fast-track channel Banking Associates and not

maintaining the ratio and not advertising the number of

vacancies is wrongfully done. The petitioners are

wrongfully made to sit and pass the test not meant for

them. The act of omission and commission is done

willfully without any lawful excuse or probable cause.

This surely amounts to “Malice in Law”.

m. Fundamentally, the eligibility for promotion of Banking

Associate is 7 years of regular service as Banking

Associates, however, a relaxation is carved out for

Banking Associates with 3 years of such service but

subject to passing of a merit test. Absent such relaxation,

the Banking Associates with 3 years‟ service are ineligible.

It stares in the face of equality, if both, eligible and

ineligible, are treated alike. To be precise, subjecting

Banking Associates with 7 years‟ service to such a 2024:JKLHC-SGR:303

21 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

test, the test meant for making ineligible candidates

(Banking Associates with 3 years‟ service) by way of

relaxation, as eligible, militates against any

reasonableness. This is what Respondent Bank has

precisely done.

n. Short of naming it as shortlisting test, the eligibility

screening written test (objective type) prescribed under

Rule 4.1 for Banking Associates (without IBPS) in

“Seniority cum selectivity channel” for all purposes and

intents is a short-listing test. It goes without saying that

short listing, though permissible, is permissible only in a

situation where number of candidates is unduly larger

than the number of vacancies. It is made permissible by

the courts only for administrative convenience of the

selection body. The most quintessential curb on such

power is that the procedure followed in such shortlisting

must be fair and reasonable within the meaning of Art. 14

of the Constitution of India. The data submitted by the

respondent No. 1- the Bank shows that number of

candidates especially in the category of Banking

Associates (without IBPS) in “Seniority cum Selectivity

Channel” is far less than the number of available

vacancies. The necessary corollary that follows is that any

test, much less the merit test, was not the requirement of

the Policy for Banking Associates (without IBPS) in

“Seniority cum Selectivity Channel” in the attendant facts

of the case.

o. The Court, while deciding the case, may also take into

consideration the conduct of the of the respondent No. 1-

the Bank in dealing with the orders of the court 2024:JKLHC-SGR:303

22 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

particularly interim order dated 16-01-2024 wherein the

respondent No. 1 - the Bank was directed to interview the

petitioners as interim measure so that they are not non-

suited. The respondent No. 1 - Bank, however, declined to

observe the order and have refused to interview the

petitioners. The interview exercise has already been

completed and the order of this court has been observed

in outrageous breach. The petitioners, in case the Court

finds merit in their case are vulnerable to reasonable

likelihood of bias in further process of selection as they

stand singled out bunch/unit. It goes without saying that

bias in all forms is an anathema in our constitutional

scheme governed by rule of law.

p. The seriousness with which the response to the writ

petition is submitted also falls for the consideration of the

court. The refutation as to the Bank being an

instrumentality of State is prominently made by the

respondent Bank in the response/reply, however, in some

other proceedings before this Hon'ble Court, the

Bank has taken a categorical approach that the Bank is

instrumentality of State within the meaning of article 12

of the Constitution of India. Order dated 29-06-2020

passed in WP(C) No. 913/2020 titled Abhishek Gupta and

ors v/s Jammu and Kashmir Bank, be taken note of.

q. The argument that the petitioners cannot challenge the

procedure after participating in the selection process is

also fallacious. This rule is subject to well-known caveat

that the procedure must be advertised and followed and

must pass the test of reasonableness, non-arbitrariness

and fairness. It must not be offensive to fundamental 2024:JKLHC-SGR:303

23 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

rights. Be that as it may, the petitioners are not

challenging the procedure, advertised, and followed, but

the wrong working of procedure advertised and/or not

followed. The procedure advertised i.e. policy is followed

in breach and in a manner that offends article 14 of the

Constitution of India.

r. Since the vacancies of all these 5 years got clubbed and

are sought to be filled without maintaining the year wise

quota, the process is violative of far too well settled

proposition of law set out by the Apex Court in Suraj

Prakash Gupta‟s case.

26. On the other hand, Mr. Shafqat Nazir, learned counsel for

the respondents have come up expounding his submissions in

written form as under:-

Petitioners are estopped in challenging the selection

process:

a) It is a settled law that when a candidate appears in an

examination without objection and subsequently finds

himself unsuccessful, any challenge to selection process

is precluded. The question of entertaining a petition

challenging an examination would not arise where a

candidate has appeared and participated, He or she

cannot subsequently turn around and contend that the

process was unfair or that there was a lacuna therein,

merely because the result is not palatable.

b) In Ramesh Chandra Shah v. Anil Joshi, (2013) 11 SCC

309, the respondents competed for the post of

Physiotherapist and participated in the written 2024:JKLHC-SGR:303

24 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

examination held in pursuance of advertisement

notification and later threw challenge to legality of the

process. The Hon‟ble Supreme Court held that if they

had cleared the test, the respondents would not have

raised any objection to the selection process or to the

methodology adopted. Having taken a chance of

selection, it was held that the respondents were

disentitled to seek relief under Article 226 and would be

deemed to have waived their right to challenge the

advertisement or the procedure of selection.

The Hon‟ble Supreme Court has held that it is settled

law that a person who consciously takes pa rt in the

process of selection cannot, thereafter, turn around and

question the method of selection and its outcome.”

c) In Chandigarh Administration v. Jasmine Kaur, (2014)

10 SCC 521, the Hon‟ble Supreme Court has held that

“a candidate who takes a calculated risk or chance by

subjecting himself or herself to the selection process

cannot turn around and complain that the process of

selection was unfair after knowing of his or her non

selection.”

The aforesaid dictum of law was reiterated in detail by

the Hon‟ble Supreme Court in the case of Ashok Kumar

v. State of Bihar, (2017) 4 SCC 357, which has been

followed by this Hon‟ble Court in the case of Fatima

Rahim v. State of J&K, 2020 (5) JIKJ CHC) 241.

d) In the instant case, the examination in question was

held on 16.12.2023 and result thereof was declared on

04.01.2024. The petitioners did not challenge the 2024:JKLHC-SGR:303

25 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

selection process or for that matter the nature of written

test immediately but waited for declaration of result

thereof. After finding themselves un successful,

subsequently challenged the selection process (in which

they participated without any demur) by way of instant

petition which was filed only on 12.01.2024 and

registered on 15.01.2024.

e) Thus, in light of aforesaid position of law the petitioners

are precluded and estopped from challenging the

selection process in question. The respondents have

committed no incurable illegality in conducting the said

selection process and the petitioners are, without

challenging the promotion policy, merely conte nding

alleged discrimination meted out to them which is not

borne by facts. Moreover, the Promotion Policy in

question providing for „written test‟ through IBPS for non

IBPS seven years plus candidates was all along in public

domain and thus in the knowled ge of the petitioners,

however, no objections were filed thereto.

No discrimination with any employee:

f) The petitioners are primarily challenging the selection

process in question on the ground that they have been

discriminated against those candidates falling under

Merit/Fast Track channel. In para 14 of the lead writ

petition, the petitioners voice their grievance in terms

that they are “distinct and unequal‟ class from the

Merit/Fast Track channel and therefore cannot be

subjected to same test as envisaged for latter. This

argument is fallacious to the core. Both the petitioners

as well as employees falling under Merit/Fast Track 2024:JKLHC-SGR:303

26 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

channel are part of the same class i.e. “Banking

Associates,” with the only difference that the Promotion

Policy has provided two channels for eligible Banking

Associates for promotion to Officers‟ Cadre based on

length of qualifying service. Merely because the

petitioners have longer service than those in Merit/Fast

Track channel does not make them a different „„class” for

the purpose of Article 14 when in fact both sets of

employees are holding the same post with same pay

scale and job responsibilities. Thus in the instant cases,

as alleged the apples have not been treated same as

oranges because there are only apples in the b asket

though of varying in sizes. The bigger apples have

already been given their due share under the Promotion

Policy by giving them a lion‟s share in promotional posts

(75%) having regard to their size (read seniority), now the

bigger apples cannot further contend that they should

be put to different process in their transition to cider

stage, which if permitted, may undoubtedly subject

other employees to discrimination. Moreover, the

petitioners are erroneously pitching themselves against

the candidates under the Fast track channel. The

petitioners are competing in their own channel against

separate 537 vacancies forming 75% of the total number

vacancies (i.e.716). The intention of the respondent

Bank in framing the Promotion Policy in question and

subjecting the candidates to written test is to have a

homogeneous pool of candidates available for the

purpose of interview and consequent promotion. The

respondent Bank, being a financial institution,

balancing the loss to income ratio, cannot afford to 2024:JKLHC-SGR:303

27 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

handover the managerial positions to non-meritorious

candidates, as the petitioners are, and thus risk

financial losses.

g) In the case of M d. Usman v. State of Andhra

Pradesh, AIR 1971 SC 1801, Rule 5 of Andhra Pradesh

Registration Subordinate Service Special Rules, was

challenged for putting together two unequal classes i.e.

Upper Division Clerks (UDC) and Lower Division Clerks

CLDC) through same recruitment process to post of

Grade-II Sub-registrars. However, the Hon‟ble Supreme

Court upheld the vires of impugned rule on the basis of

rationale underlying the same. In the case in hand, the

candidates are not falling under two different “„classes”‟

as highlighted above and moreover there is no inter se

competition between employees falling under two

aforementioned channels. Thus, the question of

discrimination does not arise at all.

Seniority not a determining factor in selection:

h) In para 14, 18 and 19 of the lead writ petition the

petitioners contend that by subjecting them to same test

as that for the Merit/Fast Track channel, the junior

employees would steal march over them. This argument

is fallacious on many counts. Firstly, there is no inter se

competition between employees falling under two

aforementioned channels both having separate share of

promotional posts (75%: 25%) as noted above. Secondly,

the petitioners being incumbents of same post as those

falling under Merit/Fast Track channel are holding, the

petitioners cannot seek a different and less onerous test

than those employees falling under Merit/Fast Track 2024:JKLHC-SGR:303

28 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

channel. In the case of B.V. Sivaiah v. K. Addanki Babu,

AIR 1998 SC 2565, the Hon‟ble Supreme Court

conclusively held that seniority is not the sole

determining factor in promotional process and merit

should prevail when other considerations are same.

The relevant part of judgment is reproduced below:

“In the matter of formulation of a policy for promotion

to a higher post, the two competing principles which

are taken into account are inter se seniority and

comparative merit of employees who are eligible for

promotion. In Sart Ram Sharma v. State of Rajasthan

& Ors., 1968 (1) SCR 111, this court has pointed

out that the principle of seniority ensures absolute

objectivity by requiring all promotion 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 Jails to take

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

except the best ones, an official has nothing to wire 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 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 2024:JKLHC-SGR:303

29 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

seniority cum-merit'‟ and 'merit-cum-seniority‟ which

take into account seniority as well as merit seek to

achieve such a balance.

The principle of „'merit-cum-seniority‟ lays greater

emphasis on merit and ability and seniority plays a

less significant role. Seniority is to be given weight

only when merit and ability are approximately equal.

In the context of Rule SC) of the Indian Administrative

Service Indian Police Service (Appointment by

promotion) Regulations, 1955 which prescribed that

"selection for inclusion in such list shall be based on

merit and suitability in all respects with due regard to

seniority” Mathew. J. in Union of India v. Mohan Lal

Capoor & Ors., 1974 (1) SCR 797, has said: "…… for

inclusion in the „list, merit and suitability in all

respects should be the governing consideration and

that seniority should play a secondary role. It is only

when merit and suitability are roughly equal that

seniority will be a determining factor, or if it is not

fairly possible to make an assessment inter se of the

merit and suitability of two eligible candidates and

come to a firm seniority would tilt the scale."

i) In the instant case, the candidates falling under

Seniority cum Selectivity channel, having already been

given 75% share of promotional posts, cannot contend

that they are entitled to a „watered down‟ test for

promotion and not a test of same or similar stoutness as

envisaged for the Fast Track channel.

Promotion Policy prescribes same written test for

both channels but with different implications:

2024:JKLHC-SGR:303

30 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

j) It is an admitted fact that the Promotion policy of the

respondent Bank envisages written tests for both

channels. It is further clear that the Policy nowhere

provides that the written test for the Seniority cum

Selectivity channel shall be different than that for the

Fast Track cum Merit channel. However, the Policy does

make a distinction regarding as to how the candidates

from two said channels are to be shortlisted for

interview.

k) In case of Seniority cum Selectivity channel, the

candidates are to merely score prescribed qualifying

marks (40% or 35%, as the case may be) and would then

be screened for interview on the basis of their “seniority”

and not the marks scored in written test; this is why the

Policy refers to this test as “screening written test‟‟. On

the other hand, in case of Fast Track cum Merit

channel, the Policy avoids the word „screening‟ and only

uses words „written test‟ because candidates falling

under this channel are shortlisted for interview on the

basis of “„merit‟‟ scored in the written test and not on the

basis of seniority.

l) Thus, for Seniority cum Selectivity channel, the written

test has only “screening” purpose and then seniority

comes into play for short-listing for

interview, whereas in case of Fast Track cum merit

channel, the marks scored by candidates in said written

test determine who from the said channel would get

shortlisted for interview. This fine but important

distinction requires to be appreciated by this Court and

the contrary argument that the Promotion Policy 2024:JKLHC-SGR:303

31 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

envisages two different tests (or that there should be two

such different tests) deserves to be rejected. If for the

sake of argument it is accepted that candidates falling

under two aforementioned channels form two different

classes, even then the requirements of Article 14 are met

as absolutely similar treatment is not given to both the

channels since in case of Seniority cum Selectivity

channel the written test is merely for screening purpose

whereas for the Fast Track cum Merit channel the

written test takes into account the actual marks scored

by the candidates for the purpose of short listing for

interview.

m) In other words, the same written test serves two different

functions and such candidates falling under the two

channels are not given absolutely similar treatment as

contented by the petitioners. The respondent Bank has

already submitted a chart explaining the aforementioned

position indicating that while all the candidates from

Seniority cum Selectivity channel have been called for

interview after securing the 40% or 35% marks, as the

case may be, the short listing of candidates for interview

as regards the Merit/Fast Track channel has been done

on the basis of merit in the written test in the ration of

1:1.5. That being the reason that not all those

candidates from Merit/Fast track channel who have

qualified the written test by 40% or 35% marks, as the

case may be, have been called for interview and the cut

off for same has gone as high as 61 points.

No interference by Courts in Selection Criteria:

2024:JKLHC-SGR:303

32 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

n) One of the foundational principles in service, as

enunciated by the Hon‟ble Supreme Court in a number

of cases, is that the Courts adopt an approach of

restraint and shall not interfere in the selection criteria

or for that matter shall not second guess the feasibility

and nature of selection tests for public posts. The

position of law in this regard has been reiterated by the

Hon‟ble Supreme Court in the recent case of Tajvir Singh

Sodhi v. State of J&K, 2023 (4) JKJ (SC) 19: AIR 2023

SC 2014, holding that:

“Courts in India generally avoid interfering

in the selection process of public

employment, recognizing the importance of

maintaining the autonomy and integrity of

the selection process.”

In Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan, AIR

1990 SC 434, the Hon‟ble Supreme Court clarified the

scope of judicial review of a selection process holding

that the Courts shall not exercise its power of judicial

review to upset or alter a selection process on the mere

asking of a litigant, and the same can be resorted to only

on limited grounds such as illegality or patent material

irregularity in the selection process.

o) In the instant case, the petitioners do not contend that

the respondents have committed any illegality or patent

material irregularity in the conduct of selection process.

In fact, the selection process has been scrupulously

conducted in conformity with the Promotion Policy in

vogue which has, admittedly, not been challenged by the

petitioners. The petitioners having failed in the written

test are now crying foul that they have been

discriminated by being subjected to same test as for 2024:JKLHC-SGR:303

33 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

those employees falling under Fast track channel. It has

been already clarified hereinabove as to how the

allegation of discrimination is not substantiated by facts

and in law. Moreover, the petitioners cannot seek an

examination of their choice or at any rate a different test

from those who are in essence similarly circumstanced

with the petitioners. Further, the Courts too are obliged

(in view of position of law noted above) not to enter into

the arena of prescribing what a selection test for a

particular set of employees should be like, as the same

would plainly be akin to judicial law-making which the

Constitution and the law does not endorse.

No vested right t o seek promotion when the

vacancies arise:

p) The petitioners have finally contended that they were

eligible for promotion in 2019 and therefore they should

be considered for promotion under old Policy and not

under the Promotion Policy presently in vogue as the

respondent Bank allegedly did not make promotions

when the vacancies arose. This contention of the

petitioners is incongruous and untenable. Firstly, clause

3 of the Promotion Policy merely obliges the respondent

Bank to “assess” the vacancies before the beginning of

each financial year and does not mandate that

promotion should also be undertaken every year.

Secondly, it is settled law that the employees have no

vested right to seek promotion under rules existing at

the time when the vacancies arose. In the case of

Deepak Aggarwal v. State of U.P., (2011)6 SCC 725, the

Hon‟ble Supreme Court held as follows: 2024:JKLHC-SGR:303

34 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

“It is by now a settled Proposition of law that a

candidate has the right to be considered in the

light of the existing rules, which implies the

„rules in force‟ on the date the consideration took

place. There is no rule of universal or absolute

application & that vacancies are to be filled

invariably by the law existing on the date when

the vacancy arises. The requirement of filling up

old vacancies under the old rules is interlinked

with the candidate having acquired a right to be

considered for promotion. The right to be

considered for promotion accrues on the date of

consideration of the eligible candidates.”

Similarly, this Hon‟ble Court in the case of Vishal

Vikram Singh Rathore v. State, SWP No. 681/201,

decided on 08.08.2018, has held as follows:

“11. It is trite law that a candidate has no right

to insist that the vacancy in the Government

service should be (filled up immediately on its

becoming available. The employer is well within

its right to decide the time when such vacancy(s)

available with it is required to be filled up. The

Government by way of a policy decision can even

freeze the vacancy(s) and direct that no

recruitment shall be made for a specified period.”

q) Thus, in view of the aforesaid position of law, the

contention of petitioners that they should be or should

have been considered for promotion under old policy is

without any merit and is liable to be rejected. Moreover,

it requires to be pointed out that the respondent Bank

has not purposefully delaying making of promotions to

Officer‟s cadre. In fact the present policy of promotion

was promulgated in 2019 itself but it had to pass

through various mandatory phases before it could have

come into force, for example review in 2021, review by

HR Committee in February 2022 and approval of Board

of Directors in July 2022. Thus, there was no 2024:JKLHC-SGR:303

35 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

“dereliction” on part of respondents as contended by

petitioners. Further, post August 2019 and in view of

COVID-19 pandemic in 20 20-21, the process of

finalization of the Promotion Policy faced a roadblock.

27. Before proceeding further, a data statement of promotion

exercise undertaken by the respondent No. 1 – the Bank is set out

herein next so as to have a perspective as to how many posts and

contenders are involved in the fray:

Total number of candidates = 1635

Total vacancies = 716

Having Two Channels available to

choose from

Seniority cum Selectivity Channel

Having 7 years of regular service

(For candidates with IBPS or Non-IBPS)

Vacancies = 537 (75% × 716)

Total candidates = 392

Fast Track cum Merit Channel

Having 3 years of regular service

(For candidates with IBPS or Non-IBPS)

Vacancies = 179 (25% × 716)

Total candidates = 1243

Candidate with IBPS

243

Non-IBPS Candidates

149

Interview

Eligible Candidates = 243

Online Examination

Qualified Candidates = 18

Had to secure only 40% or

35% as the case may be

Interview

Eligible Candidates = 18

Interview

Meritorious Candidates

called = 269. Cut off is 61

(Ratio 1: 1.5)

Online Examination

Qualified Candidates = 959

TOTAL VACANCIES AVAI LABLE = 537 TOTAL VACANCIES AVAI LABLE = 179 2024:JKLHC-SGR:303

36 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

28. Keeping in perspective the aforestated facts and

circumstances and the submissions of the respective sides, this

Court, when evaluates the grievance of the petitioners and the

response thereto of the respondent No. 1 – the Bank, comes face to

face with an admitted state of fact that the petitioners, as non-IBPS

Banking Associates with seven (7) plus years of service and the

Banking Associates with three (3) plus years of service came to be

subjected to same rigorous written test meant for Fast-Track/Merit

Channel without any shade of difference and that being so can it

still be held that the petitioners cannot be heard to say that they

have been subjected to an unfair and arbitrary treatment or that the

respondents should be heard to prevail that the petitioners cannot

crib about the nature of the written test subjected upon them by the

respondent No. 1 – the Bank as being an employer in its discretion.

29. This Court is led to envision a scenario that if a fitness test

designed and meant for a runner is to be applied for checking the

fitness of a walker, then would that fitness test suffered by a walker

disqualify him from being considered in a competition for selection

meant for co-walkers who were not subjected to said fitness test

meant for the runners for their qualification for participation in a

walkers‟ competition and the obvious answer to come with respect

to the said question is No. A walker cannot be tested on a fitness 2024:JKLHC-SGR:303

37 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

test meant for a runner and, therefore, disqualification cannot be

ascribed to him so as to unfit him to join a group of walkers with

whom he is supposed to compete in a competition for promotion to

next level.

30. The respondent No. 1 – the Bank itself is the author of the

Policy and it cannot apply it by tweaking its text and context. If the

situation was so easy to be figured out as the respondent No.1-the

Bank is meaning to showcase in its reply and written submissions

that for a non-IBPS Banking Associate with seven (7) plus years of

service to earn promotion to next level he or she is to clear a

common written test competing along with Banking Associate with

three (3) plus years of service under Fast-Track/Merit test regime,

then the Policy itself would have come up with no distinction and

just by one rule serving the two ends would have sufficed the

purpose but the Policy is not so worded meaning and

recommending.

31. There is an apparent inherent fallacy in the stand of the

respondent No. 1 – the Bank. The respondent No. 1 – the Bank‟s

stand is that by same common written test, non-IBPS Banking

Associates with seven (7) plus years of service and Banking

Associate with three (3) plus years of service under the Policy are to

qualify by earning base level percentage to earn entry in the 2024:JKLHC-SGR:303

38 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

respective pools under two different channels. If that is to be so,

then a non-IBPS Banking Associate with seven (7) years plus of

service upon qualifying the same very written test would have

his/her both hands full in terms of his/her promotion aspect as

he/she can figure in the Seniority-cum-Selectivity channel and

simultaneously under Fast-Track/Merit channel and thereby would

be eating away the prospect of his/her colleague Banking Associate

with three (3) plus years service having qualified the same written

test in the sense that in the Fast-Track/Merit channel, APAR is also

of 30 marks, Interview/Potential is of 60 marks, Additional

Qualification is also of 10 marks as is for Seniority-cum-Selectivity

channel appraisal. A non-IBPS Banking Associate with seven (7)

plus years of service having qualified the common written test as

meant for Fast-Track/Merit channel would have an edge in terms of

his/her appraisal under the three heads as prescribed for

assessment, with seniority of seven(7) plus years of service being an

added advantage/edge over a qualifying Banking Associate with

three (3) plus years of service under Fast Track/Merit channel. The

Policy surely does not mean to debar a non IBPS Banking Associate

with 7 plus years of service from availing a chance or opportunity in

appearing under Fast Track/Merit channel. Clause 4.1(b) provides

eligibility and qualification for promotion of Banking Associate

under Fast Track/Merit channel and that eligibility is all Banking 2024:JKLHC-SGR:303

39 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

Associates having completed three years of regular service as on 31

st

March of the preceding financial year for participation in the

promotion process under Fast Track/Merit channel.

32. Minimum qualifying written test marks under Fast

Track/Merit channel in terms of clause 5.2 is 40% and 35% for

general and reserved category respectively and same percentage is

for non IBPS Banking Associates with seven (7) years plus regular

service under clause 4.1(a) of Seniority-cum-Selectivity channel.

Now if the respondent No.1-the Bank is allowed to have its say, as is

vehemently desired by it in its reply and written submissions, then

common written test undertaken and qualified by a non -IBPS

Banking Associate with seven(7) years plus regular service by

earning base line percentage age would open door for his/her

promotion under Fast Track/Merit channel and then what for

he/she would opt to stay in larger competitive field of Seniority cum

Selectivity channel promotion as he/she would have a switch over

choice. Thus, the lens with which the respondent No. 1 – the Bank

is seeing its own promotion Policy is more refracting then reflecting.

33. Surely the aforesaid situation is not the end objective of the

Promotion Policy which clearly conceives and envisages that non-

IBPS Banking Associates with seven (7) plus years regular service

to be deserving a helping hand in their upward progression subject 2024:JKLHC-SGR:303

40 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

to their qualifying a moderately framed screening written test

commensurating with their status and background as non-IBPS

Banking Associate but respecting their seniority and non IBPS

handicap for earning them an entitlement to be considered for

promotion under Seniority-cum-Selectivity Channel. Thus, rejection

is not an essence of the Promotion Policy for non-IBPS Banking

Associates with seven (7) years of service by a common written test

meant for Fast-Track/Merit channel but the appraisement is the

catch-word of the Promotion Policy for non-IBPS with seven (7) plus

years of service by giving them a screening written test under

Seniority-cum-Selectivity channel which may or may not by an In –

house conducted screening written test.

34. The respondent No. 1 – the Bank has gone squarely wrong

in subjecting the petitioners to an unfair, arbitrary and

discriminatory treatment by making them to suffer a written test

not meant for them thereby condemning them as failure and looser

in terms of their respective promotion claims and prospects under

the Seniority-cum-Selectivity Channel. This court finds the

respondent No.1-the Bank caught on wrong foot in dealing with the

non IBPS Banking Associates with seven(7) plus years of service

availing promotion opportunity under Seniority cum Selectivity

channel. The respondent No.1-the Bank has not come forward with 2024:JKLHC-SGR:303

41 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

any decision from its end being placed on the file of this writ

petition to show by which decision at its end the common written

test for Fast Track/Merit channel Banking Associates and non IBPS

Banking Associates came to be ordered and carried out.

35. The understanding of the Court with respect to the essence

of the Promotion Policy in the light of the aforesaid is strengthened

by clause 5.2 tabulated statement which is reproduced herein again

as under:-

Particulars

Seniority-cum-

Selectivity

channel

Merit/ Fast

Track Channel

Distribution of vacancies 75% 25%

Residency (actual length

of regular service in BAS-

cadre)

7 years 3 years

Selection parameters: Max. Marks Max. Marks

 APAR 30 30

 Interview/ Potential 60 60

 Written Test (online)



NA Qualifying only

 Addl. Qualifications

(Post-graduation/JAIIB/CAIIB/

CA/ICWA/CS, Phd./M.Phil/MBA

& B&F)

10 10

Total 100 100



Note: Minimum qualifying marks in written test for promotions in

fast track/merit channel shall be 40% for General candidates &

35% for reserved category candidates.

36. The very fact that with respect to the Seniority -cum-

Selectivity Channel, Written Test (online) is mentioned to be not 2024:JKLHC-SGR:303

42 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

applicable with which the petitioners are related to whereas with

respect to Merit/Fast Track Channel the expression “qualifying

only,” is emphasizing the essence of the written test being a real fire

test to qualify for jump promotion and obviously the said fire test is

not meant to be a walkover for Fast-Track/Merit channel Banking

Associates aspiring for promotion by jumping the queue ahead of

their senior Banking Associates, IBPS or non-IBPS, with seven (7)

plus years of service.

37. Thus, the respondent No. 1 – the Bank cannot be heard to

say that Seniority-cum-Selectivity Channel and Fast-Track/Merit

channel are prone to the same written test for earning the

qualification for consideration for promotion though under the

respective two channels.

38. Clause 5.4.2 further strengthens the understanding on this

aspect that the merit obtained in the written test by a Banking

Associate with 3 plus years of service aspiring for Fast-Track/Merit

channel promotion is the determining basis for the entry of a

Banking Associate aspirant in the pool of consideration under Fast-

Track/Merit channel, whereas it is not so in the case of non-IBPS

Banking Associates with seven (7) plus years of service under the

Seniority-cum-Selectivity Channel in the context of screening

written test (objective type) meant for them to be undertaken. 2024:JKLHC-SGR:303

43 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

39. Clause 4.1 very distinctly uses word “an eligibility

screening written test (objective type),” whereas clause 5.2 in its

table with respect to written test (online) makes the same to be not

applicable to Seniority-cum-Selectivity Channel but meant for Fast-

Track/Merit channel. Thus, what is written test (online) for Fast-

Track/Merit channel Banking Associates with three (3) plus years of

service is not to be an eligibility screening written test (objective

type) for non-IBPS Banking Associates with seven (7) plus years of

service under Seniority-cum-Selectivity Channel. The respondent

No. 1- the Bank is creating a false equivalence and illusion by its

stand in the case thereby denouncing the petitioners.

40. This Court has reproduced hereinbefore para 14 of the writ

petition and the reply thereto by the respondent No. 1‟s end which

read between the line clearly carries an admission on the part of the

respondent No. 1 – the Bank that the petitioners were caught

unaware about the nature of the written test to which they were

being subjected to which if the petitioners would have been made

known/apprised earlier by the respondent No. 1 – the Bank that

non-IBPS Banking Associates with seven (7) plus years of service

figuring in Seniority-cum-Selectivity channel for promotion

purposes are to bear the same written test as meant for Banking

Associates with 3 plus years of service under Fast-Track/Merit 2024:JKLHC-SGR:303

44 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

channel then the petitioners surely would have the option of non-

participating in the said process in exercise of their legitimate right

of objection. Therefore, it cannot lie in the mouth of the respondent

No. 1 – the Bank that the petitioners cannot agitate after having

participated in the process. The respondent No.1-the Bank by its

stand seems to play ducks and drakes with the petitioners.

41. It seems that the decision/act on the part of the respondent

No. 1 – the Bank in subjecting the petitioners to bear a common

written test as meant for Fast-Track/Merit channel Banking

Associates was pre-motivated with a step-motherly mindset toward

non-IBPS Banking Associates with seven (7) plus years of service so

as to ensure that as many as less non-IBPS Banking Associates

with seven (7) plus years of service can make it to the pool of

Seniority-cum-Selectivity channel for the purposes of promotion

competing with IBPS Banking Associates with seven (7) plus years

of service. This fact is exposed from the fact that promotional posts

available are large in number and the total number of Banking

Associates, IBPS and non-IBPS, with seven(7) years service is less in

number meaning thereby even without any test qualification non -

IBPS Banking Associates with seven years service could be

accommodated in promotion for next post and still leaving posts 2024:JKLHC-SGR:303

45 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

unfilled which fact is gatherable from data statement set out

hereinbefore.

42. In fact, the petitioners or for that matter all non-IBPS

Banking Associates with seven(7) plus years of service, came to

suffer a double discrimination, one being tested on a different test

not meant for them and other being to maximize the promotion of

IBPS Banking Associates to the higher post thereby leaving non -

IBPS Banking Associates with seven(7) plus years of service to stay

non-promoted and keep on serving the respondent No. 1 – the Bank

at the same level of their post without any progression just bidding

time for their retirement to be self-weeded out without any

promotion.

43. The submissions made by Mr. Shafqat Nazir, learned

counsel for the respondents as reproduced hereinbefore and

citations in support need not be dealt by this Court individually as

all the submissions can be answered with a one liner that the effort

on the part of the respondents in particular the respondent No. 1 –

the Bank is to s quare the circle by imposing a contorted

interpretation on the relevant clauses of the Policy pertaining to and

meaning a different treatment reserved for non-IBPS Banking

Associates with seven(7) plus years of service under Seniority-cum-

Selectivity channel and the Banking Associates with 3 plus years of 2024:JKLHC-SGR:303

46 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

service under Fast-Track/Merit channel. The standpoint of the

respondent No.1-the Bank is self defeating which can be called out

by posing a scenario to the respondent No.1-the Bank that instead

of non IBPS Banking Associates with seven (7) plus years of service

under Seniority cum Selectivity promotion channel being given the

actually intended eligibility screening written test (objective type) as

per clause 4.1(a), if it would have been the Banking Associates with

three (3) plus years of service availing Fast-Track/Merit promotion

channel asking for appearing same level of screening written test

(objective type) and not the one as mandated by clause 5.2, then

would the respondent No.1-the Bank have extended them the

courtesy of treating them at par with non IBPS Banking Associates

under Seniority cum Selectivity channel in the matter of taking the

same screening written test. This court can hazard a quickened and

safe guess that the respondent No.1- the Bank would have come up

and will always come up with No to Banking Associates with

three(3) plus years of service.

44. This court would be just adding pages to the judgment in

the event of dealing point-wise with the submissions of the learned

counsel for the petitioners as the same cannot avail to puncture the

very Promotion Policy self authored by none else than the

respondent No. 1 – the Bank. The respondent No. 1 – the Bank is 2024:JKLHC-SGR:303

47 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

acting against the very sensitivity of the Promotion Policy by losing

sight and sense of the basis of clause 4.1(a) of the Policy in the

context of non-IBPS Banking Associates with seven (7) plus years of

service aspiring for promotions under Seniority -cum-Selectivity

Channel. Once clause 4.1(a) of the Policy has bestowed a class

status to non IBPS Banking Associates in the context of their

promotion progression in contrast to IBPS Banking Associates with

seven (7) plus years of service under Seniority cum Selectivity

channel promotion and Banking Associates above three (3) years of

service under Fast Track/Merit channel promotion then by

subjecting non IBPS Banking Associates to a common written test

meant for Fast Track/Merit channel Banking Associates with three

years plus service is nothing but treating unequals as equals which

in every sense of understanding of facts of the case is violative of

facets of article 14 of the Constitution of India. In the case of U.P.

Power Corporation Ltd. Vs Ayodhya Prasad Mishra & Anr., (2009

AIR SC 296) the Hon‟ble Supreme Court of India in its judgment at

para 37 in a single line statement has captured the essence and

sensitivity of article 14 of the Constitution of India, “ It is well

settled that equals cannot be treated unequally. But it is

equally well settled that unequals cannot be treated equally.

Treating of unequals as equals would as well offend the

doctrine of equality enshrined in Articles 14 and 16 of the 2024:JKLHC-SGR:303

48 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

Constitution.” In the case U.P. Power Corporation Ltd. Vs Ayodhya

Prasad Mishra & Anr. (supra), for the promotion purposes to the

post of Superintendent Engineer, the Executive Engineers were

categorized in category I, II and III for the sake of preference but the

employer U.P. Power Corporation Ltd., by following its self

interpretation, understanding and application of the Regulations

related to categorization and by adhering to past practice in the

name of consistency had diluted the categorization thereby

benefitting category II placed Executive Engineers by claim of their

seniority above the Executive Engineers in category I only to suffer

judgment against its action by the High Court of Allahabad and

confirmed by the Hon‟ble Supreme Court of India. This judgment

extends a support to the case of the petitioners as understood by

this court in the manner set out.

45. Article 14 of the Constitution of India envisions and

enshrines equality concept intensively, extensively and attentively.

Article 14 envisages fairness and equality in the matter of conduct

by the State and its authorities, which the respondent No. 1 – the

Bank is under article 12 of the Constitution of India. Article 14 of

the Constitution of India is found squarely violated in the present

case which renders the action of the respondent No. 1 – the Bank

illegal qua the petitioners and, therefore, this Court is left 2024:JKLHC-SGR:303

49 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

with no other option but to hold the selection proce ss under

Seniority cum Selectivity channel with respect to non-IBPS Banking

Associates, as are the petitioners, conducted by the respondent No.

1- the Bank as illegal and arbitrary and consequently warranting a

direction unto the respondent No. 1 – the Bank to consider

conducting a fresh eligibility screening test (objective type) as

envisaged by clause 4.1(a) of the Policy with respect to non-IBPS

Banking Associates with seven (7) years plus of service for the

purpose of their participation in the promotion process under the

Seniority-cum-Selectivity Channel and thereupon consider the

promotion of non-IBPS Banking Associates with seven (7) years plus

service who are able to qualify the said written screening eligibility

test by having 40%-35% marks for General/ Reserved Category as

the case may be.

46. This court can not countenance with the expectation of the

writ petitioners for a direction unto the respondent No.1-the Bank

to afford promotion to the petitioners by dint of their seniority under

Seniority cum Selectivity channel without going through the process

of screening written text envisaged under clause 4.1(a) of the Policy

as for that the petitioners ought to have thrown a challenge to the

requirement of screening written test (objective type) for the

petitioners to suffer which is not the case. The Policy in its version 2024:JKLHC-SGR:303

50 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

2.0 came into picture upon its approval by the Board of Directors of

the respondent No.1-the Bank on 13/07/2022 and the petitioners

ought not to have waited for their appearance and purported failure

in the common written test conducted under the new Pol icy to

come alive to a realization that they are not to be governed by the

Policy in currency but under the old Policy governing the

promotions.

47. Thus, in view of the aforesaid facts and circumstances and

the reasoning applied thereto, by holding the actio n of the

respondent No.1-the Bank in subjecting non IBPS Banking

Associates eligible for consideration under Seniority cum Selectivity

promotion channel, to a qualifying written test not meant for them

under the Policy, as illegal, arbitrary and discriminatory, this Court

directs the respondent No.1-the Bank to consider the petitioners

and similarly placed non IBPS Banking Associates with seven (7)

plus years of service for promotion as per assessment envisaged

under clause 5.2 to the next post with or without subjecting them to

a screening written test (objective type) at its discretion given the

fact of number of available promotion posts more and the total

number of Banking Associates , IBPS and non-IBPS, less.

WP(C) No. 130/2024 2024:JKLHC-SGR:303

51 WP(C) No. 74/2024

c/w

WP(C) No. 130/2024

48. This writ petition is similarly placed as is writ petition No.

74/2024 so the judgment in writ petition WP(C) No. 74/2024 is to

apply on all fours to the writ petition WP(C) No. 130/2024.

(RAHUL BHARTI)

JUDGE

SRINAGAR

26.07.2024

Muneesh

Whether the order is speaking : Yes

Whether the order is reportable : Yes

2024:JKLHC-SGR:303