Debasish Kar Gupta, J.@mdashThis writ application is filed by the petitioners praying for issuing a writ in the nature of mandamus to quash and set aside the order of promotion issued by the respondent bank under circular No. HGB/PAD/CR/06/2006 dated April 5, 2006 as also for a direction upon respondent bank for giving promotion to the petitioners to the post of officers Scale-1 (Group ''A'').
2. The facts of the case in a nutshell are discussed below:
The petitioners were initially appointed in the Clerical cadre (Group-''B'') under respondent bank on different dates during the period from 1985 to 1989. The respondent Nos.5 to 24 were appointed in the same cadre under the respondent bank after the petitioners. The appointment and promotion of RRB Staff Rules, 1998 (hereinafter referred to as the RRB Staff Rules, 1998) came into force with effect from July 29, 1998. The RRB Staff Rules, 1998 were approved by the Board of Directors of the respondent bank in its 97th meeting dated November 11, 1998 for the purpose of appointment and promotions of its staff. The above decision was circulated by the respondent bank by a circular dated January 5, 2000.
3. In accordance with the provisions of Rule 3 read with first schedule of the RRB Staff Rules, 1998, the promotional post of the petitioners was described as officers Scale-I (Group A). 50% of the vacancies of the above post were to be filled up by promotion on seniority-cum-merit basis. In cases of promotion, the selection of candidates should be made by the committee on the basis of written test, interview and performance appraisal reports as per the division of marks as follows:
(a) Written Test: 70
(b) Interview: 20
(c) Performance Appraisal Reports: 10
Total - 100
The above rule further prescribed that 70 marks allotted in the written test should be further divided as under:
(a) English 35
(b) Bank Law Practice and Procedure 35
Total - 70
4. The list of only those candidates who would secure a minimum of 40% marks each in English, Bank Law, Practice and Procedures should be prepared and the bank, thereafter, should prepare a list of selected candidates in order of seniority to the extent of two hundred per cent of vacancies for promotion for the purpose of calling for interview. Clause (B) of sub-rule(j) of Rule 3 of the RRB Staff Rules, 1998 provided that there should be no minimum qualifying marks in the interview.
5. The respondent bank issued a notification dated December 29, 2005 pursuant to the resolution adopted by the Board of Directors of the bank by circulation of board note dated December 28, 2005, to accord its approval for filling twenty vacancies in officer Scale-I (Group ''A'') through promotion channel from clerical cadre (Group ''B'' in accordance with the provisions of RRB Staff Rules, 1998. The salient information furnished in the above notification prescribed minimum qualifying marks (performance bench mark) as per sponsor bank guideline and the decision of the board of respondent bank thereto as under:
(a) Written Test 40%
(b) Interview 50%
(c) Performance Appraisal 50%
6. The petitioners and the private respondents participated in the selection process for above promotion. By a circular dated April 5, 2006 the respondent bank gave promotion to the respondent Nos.5 to 24 to the post of officer Scale-I (Group ''A) with effect from April 5, 2006. Hence this writ application.
7. It is submitted by Shri Kashi Kanta Moitra, learned senior counsel appearing on behalf of the petitioners, that sub-rule(d) of Rule 3 of RRB Staff Rules, 1998 prescribed that promotion should be given on seniority-cum-merit basis. Clause (a) of sub-rule (j) of Rule 3 further provided that the respondent bank should prepare the list of selected candidates in order of seniority to the extent of two hundred per cent of vacancies for promotion for the purpose of calling for interview containing the names only those person who had secured a minimum of 40% marks in each paper in the written test. But the respondent bank did not prepare such a list violating the above provision. Instead merits of the candidates were given preference in violation of provisions of sub-rule(d) of Rule 3 of the above Rules. According to Mr. Moitra, the decision of the Board of Directors of the respondent bank as circulated by notification dated December 29, 2005 prescribing minimum qualifying marks (performance bench mark) in respect of interview @ 50% in the process of promotion under reference was in gross of violation of the provisions of Clause (B) of sub-rule (j) of Rule 3 of the RRB Staff rules, 1998. According to the above provision there should be no minimum qualifying marks in the interview.
8. Mr. Moitra relies upon the decisions of
9. It is submitted by Mr. L. K. Gupta, learned senior advocate appearing for the respondent bank, that in accordance with the provisions of section 17 of the Regional Rural Banks Act, 1976 (hereinafter referred to as the said Act, 1976), the Regional Rural Bank possessed the power to appoint officers and other employees determining the terms and conditions of their appointments and services in such a manner as may be prescribed. In accordance with the provisions of section 8 of the said Act, 1976, the general superintendence, direction and management of affairs and business of Regional Rural Bank should vest in a Board of Directors. In exercise of power the Board of Directors of the respondent bank prescribed the minimum qualifying marks(performance bench mark) in respect of interview @ 50% in the matter of promotion to the post of officers Scale-I (Group ''A'') by virtue of the notification issued under circular dated December 29, 2005. According to Mr. Gupta, it was done in accordance with the guidelines prescribed by the sponsor bank. The second limb of argument of Mr. Gupta is that for the purpose of selection for promotion under reference the seniority-cum-merit principle was followed. In doing so the respondent bank was under obligation to prescribe minimum standard in respect of written test, interview and performance appraisal to ensure the minimum necessary merit requisite for efficiency of administration and priority for the seniors though less meritorious after reaching the minimum necessary merit. The third limb of submissions of Mr. Gupta is that though the word "shall" was used for clause (B) of sub-rule (j) of Rule 3, the same should treated as "may" in order to give effect to the provisions of sub-rule(d) of Rule 3 of the RRB Staff Rules, 1998 by maintaining the principle of seniority-cum-merit. The fourth limb of submissions of Mr. Gupta is that the petitioners participated in the process of promotion knowing fully well that the Board of Directors of the respondent bank prescribed minimum qualifying marks for interview. Having unsuccessfully participated in that process without any demur they were estopped from challenging the selection criterion on the ground that the procedure was contrary to RRB Staff Rules, 1998.
10. Mr. Gupta relies upon the decision of
11. I have heard the learned counsels appearing for the respective parties at length and I have considered the facts the circumstances of the case. In order to ascertain the power of the respondent bank to determine the terms and conditions for appointment and services of its officers and employees, the provisions of sub-section (1) of section 17 of the said Act, 1976 are quoted below:
"17. Staff of Regional Rural Banks.- (1) A regional Rural Bank may appoint such number of officers and other employees as it may consider necessary or desirable [in such manner as may be prescribed] for the efficient performance of its functions and may determine the terms and conditions of their appointment and service:
Provided that, it shall be lawful for a sponsor Bank, if requested so to do by a Regional Rural Bank sponsored by it, to send, such number of officers or other employees on deputation to the Regional Rural Bank as may be necessary or desirable for the efficient performance of its functions:
Provided further that the remuneration of officers and other employees appointed by a Regional Rural Bank shall be such as may be determined by the Central Government, and in determining such remuneration, the Central Government shall have due regard to the salary structure of the employees of the State Government and the local authorities of comparable level and status in the notified area."
The term "prescribed" used in the above provision was further defined in sub-section (e) of section 2 of the said Act, 1976 as follows:
"2. Definitions. - In this Act, unless the context otherwise requires,-
(a) ......
(b) ......
(c) ......
(d) ......
(e) "prescribed" means prescribed by rules made under this Act;"
12. Therefore, in view of the above provisions it was open for the respondent bank to appoint officers and other employees determining the terms the conditions of their appointments and services following the manner as may be prescribed by Rules made under the said Act, 1976.
13. It is not in dispute that the RRB Staff Rules, 1998 were framed by the Government of India for appointments and promotions of the officers and other employees of Regional Rural Banks. It is also not in dispute that the RRB Staff Rules, 1998 were duly approved by the Board of Directors of the respondent bank in its 97th meeting held on November 11, 1998.
14. In order to examine the decision making process of the respondent bank, the following provisions of the RRB Staff Rules, 1998 are quoted below:
"3. a) Name of the post : Scale I Officer
b) Classification : Group ''A''
c) Source of appointment : 50% by direct recruitment through Banking Service Recruitment Board and 50% by promotion.
d) Whether promotion to be made on seniority basis or seniority-cum-merit basis. : Promotions shall be made on the basis of seniority-cum-merit.
e) : ......
f) : ......
g) : ......
h) : ......
i) : ......
j) Selection process for : The selection shall be on Promotees the basis of performance in the written test, interview and
A) Written Test : 70 marks
B) Interview : 20 marks
c) Performance Appraisal Reports : 10 marks Total marks : 100 marks
(A) Written Test (70 marks) : The candidates shall be required to appear for written test comprising test in English and test in Banking law, practice and procedures including working procedures in the Regional Rural Bank concerned. 70 marks allotted to written test shall be further divided as under: English 35 marks Banking Law Practice and Procedures 35 marks Total marks 70 marks A list of only those candidates who secure a minimum of 40% marks each in English, Banking Law, practice and procedures shall be prepared. The Bank, thereafter, shall prepare the list of selected candidates in the order of seniority to the extent of two hundred per cent of the vacancies for promotion for the purpose of calling for interview.
(B) Interview (20 marks) There shall be no minimum qualifying marks in the interview."
15. The above Rules prescribed that the promotions should made on the basis of the seniority-cum-merit. The selection should be made on the basis of the performance in written test, interview, and five years'' performance appraisal reports. A list of selected candidates only those candidates who secure a minimum of 40% marks in three papers of written test should be prepared in order of seniority to the extent two hundred per cent of the vacancies for promotion for the purpose of calling for interview. It was further prescribed in the above Rules that there should not be any minimum qualifying marks in the interview.
16. In the instant case I find that the respondent bank prescribed minimum qualifying marks (performance bench mark) in respect of interview @ 50% by a notification issued under circular dated December 29, 2005 as per decision of board of the respondent bank on the basis of the sponsor bank guidelines. It was contrary to the provisions of the RRB Staff Rules, 1998 as set out hereinabove.
17. It is the settled principles of law that an administrative instruction must yield to a contrary provision in statutory rule as decided in the decision of
"6. The question which arose for consideration in the writ petition before the High Court at the instance of the appellant was whether in the face of the mandate in Rule 29 the administrative order could operate. It is not the stand of the State Government that the order dated 15-5-1981, is one under the proviso to Rule 29. In fact, the tenor of the proviso clearly indicates that it is intended to cover specific cases and individual employees. An administrative instruction cannot complete with a statutory rule and if there be contrary provisions in the rule the administrative instructions must give way and the rule shall prevail. We are, therefore, of the view that the appellant, in terms of Rule 29, ceased to be a government employee on his attaining the age of 58 years, two days prior to the order of dismissal. In view of the fact that he had already superannuated, government had no right to deal with him in its disciplinary jurisdiction available in regard to employees. The ratio of the decision in R.T. Rangachari v. Secretary of State for India in Council supports the position.
The appeal is allowed, the order of the High Court is reversed and the order of dismissal is quashed."
(Emphasis supplied)
18. In view of the above settled principles of law the procedure followed by the respondent bank in maintaining the minimum qualifying marks (performance bench mark) in interview was not sustainable in law.
19. I do not find substance in the submissions made on behalf of the respondent bank that section 17 of the said Act, 1976 gave the power of determining terms and conditions for appointment and services of the officers and employees of respondent bank to its board. The provisions of section 17 of the said Act, 1976 prescribed that the officers and the employees of the respondent bank should be appointed in the manner as "prescribed". The term prescribed is defined in RRB Staff Rules, 1998 as the manner prescribed by the rules. Therefore, once, the rules prescribed the manner of fixing no minimum qualifying marks in the interview, it was not permissible for the respondent bank to prescribe minimum bench mark in the interview.
20. I do not find substance in the submissions made on behalf of the respondent bank that in view of the settled principles of law of maintaining minimum bench marks in respect of written test, interview and performance appraisal report in order to ensure a minimum standard for promotion, the provisions of the clause (B) of sub-rule (j) of Rule 3 of the RRB Staff Rules, 1998 could be violated. The legality of the above provisions is not under scrutiny in this writ application. Suffice to say that the above provisions were very much in force at the material point of time.
21. I do not find any scope of considering the term "shall" provided in clause (B) of sub-rule 3 of RRB Staff Rules, 1998 as "may" or to arrive at a conclusion that the above provision was directory. There is no contradictory provision in this Act. It is the settled principles of law that in the event a plain and simple meaning could be given to a provision, without facing any contradiction with any other provision in the same statute or otherwise, the Court should not venture to any other method. In this regard the relevant provisions of the decision of
"28. The words "shall" and "unless" appearing in section 45 mandate that before referring the parties to arbitration, the judicial authority should be satisfied that the arbitration agreement is not null and void, inoperative or incapable of being performed. In Brace Transport Corpn. of Monrovia v. Orient Middle East Lines Ltd. (SCC at pp. 286-87, para 12) this Court held:
''The Court of a contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of Article II shall upon the request of one of the parties, refer the parties to arbitration, unless it finds that the agreement is null and void, inoperative or incapable of being performed.''
29. If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceeding. (Craies on Statute Law, 7th Edn., at p. 263.)"
22. Now, the Court is to arrive at a decision with regard to the relief to which the petitioners are entitled. I find that the provisions of RRB Staff Rules, 1998 were known to all the petitioners at the time of initiation of the process for promotion under reference. The notification of the respondent bank issued under circular dated December 29, 2005 was also known to them at the time of participating in the selection process. None of the petitioners raised his little finger against the actions of the respondent bank in conducting the process of section for promotion under reference on the basis of the above notification issued under circular dated December 29, 2005. Having unsuccessfully participated in process of selection for promotion under reference without any demur, the petitioners filed the instant writ application after the respondent Nos.5 to 24 had been given promotions on the basis of the above notification of the respondent bank. The law is well-settled in the decision of
10. The next question which arises for consideration is as to what direction would be just and proper in the circumstances of this case. We do not agree with the High Court to quash the entire selection made by the Board for the posts of Assistant Engineers (Civil). It may be noted that Rajeev Govil, Vivek Aggarwal and Gyanendra Srivastava who remained unsuccessful had filed the writ petitions after taking chance and fully knowing the percentage of marks kept for interview and group discussion. It is no doubt correct that they cannot be estopped from challenging the rule which is arbitrary and violative of Article 14 of the Constitution, but in modulating the relief, their conduct and the equities of those who have been selected are the relevant considerations. The appellants have joined the post on December 28, 1989 and after completing the training are discharging their duties at different places. It has been submitted on their behalf that some of them had left their earlier jobs and have also become overage. Thus we do not consider it proper in the interest of justice to set aside the selections of the appellants.
23. In view of the above settled principles of law I do not consider it proper in the interest of justice to set aside the selections of the respondent Nos.5 to 24.
24. In the matters, of Rani Drigraj Kuerv (supra) and M/s. Rubber House (supra) and Martin & Harris Ltd. (supra) a provision of the statute was held to be directory and not mandatory on the basis of the distinguishable fact and circumstances. In the matter of Sant Ram Sharma (supra) the propriety of the decision of the respondent authority with regard to the promotion to selection grade on the basis of the merit-cum-seniority was under scrutiny of the Court. Therefore, the above decision has no manner of application in view of the facts the circumstances of the case. For the same reason the decision of Sukumar Mukherjee (supra) has no manner of application in view of the distinguishable facts and circumstances. With regard to the decision of B.V. Sivaiah (supra) I find that the prohibition for fixing bench mark in respect of interview was introduced in the RRB Staff Rules, 1998 for the first time. There was no scope for examining the propriety of that provision by the Hon''ble Supreme Court while deciding the matter of B.V. Sivaiah (supra). Subsequently, the above statutory provision was in force at the time of conducting the selection process for promotion under reference. Therefore, there is no manner of application of the above decision in the instant case.
25. Consequent upon the above discussions and observations this writ application is allowed in part by quashing and setting aside the 50% minimum qualifying marks (performance bench mark) as prescribed in clause 5 of the notification issued by the respondent bank under circular No. HGB/PAD/CR/31/2005 dated December 29, 2005. However, considering the conduct of the petitioners as discussed hereinabove and the equities of those who have been promoted to the post of officer scale-I (Group ''A''), the impugned order of promotion of the respondent Nos. 5 to 24 shall not be disturbed.
26. In the facts and circumstances of the case parties shall bear their own costs.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
Later:
Dated September 17, 2009.
After delivery of the judgment a prayer is made on behalf of the respondents for staying of operation of this judgment. The prayer is rejected.
