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CASE NO.: Appeal (civil)  1153 of 2003

PETITIONER: Harigovind Yadav

RESPONDENT: Rewa Sidhi Gramin Bank & Ors.

DATE OF JUDGMENT: 09/05/2006

BENCH: B N Srikrishna & R V Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       The appellant and the third Respondent are working as  clerk-cum-cashiers with the first respondent Bank (Rewa Sidhi  Gramin Bank). The appellant is at serial No.9 and third  respondent is at serial No.10 in the seniority list of senior clerks  cum cashiers published on 31.7.1988. There is no dispute that  the third respondent is junior to appellant in the cadre of clerk-  cum-cashier.  

2.      The promotions of employees of the first Respondent  Bank (for short ’the Bank’) are governed by the Regional Rural  Banks (Appointment & Promotion of Officers and other  employees) Rules, 1988 (for short ’rules’) made by the Central  Government in exercise of the power conferred by Section 29  read with section 17 of the Regional Rural Banks Act, 1976.  Rule 5 provides that all vacancies shall be filled by deputation,  promotion or by direct recruitment in accordance with the  provisions contained in the second Schedule. Rule 10 requires  the Board of Directors of each Regional Rural Bank to  constitute from time to time Staff Selection Committees in the  manner provided therein for the purpose of selecting candidates  for appointment by direct recruitment or promotion to the posts  referred to in the second Schedule. It also requires the Staff  Selection Committee to follow the procedure as determined by  the Board for selecting the candidates for appointment or  promotion in accordance with the guidelines issued by the  Central Government from time to time.

3.      Entry 5 of the second Schedule to the Rules relates to  Field Supervisors. It provides the source of recruitment as 50%  by direct recruitment and 50% by promotion on the basis of  seniority-cum-merit (from amongst confirmed senior clerk- cum-cashiers, junior clerk-cum-cashiers, or clerk-cum-typists,  stenographers and steno typists with the prescribed minimum  periods of service). For direct recruitment, the mode of  selection is ’written test and interview’. The method prescribed  for ascertaining the minimum necessary merit required for  promotion by seniority-cum-merit is ’interviews and  assessment of performance reports for the preceding 3 years’.  

4.      The promotions were made by the Bank in accordance  with the promotion policy contained in the circular dated  2.2.1989. The circular stated the object of the promotion policy

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thus:

"The object of the policy which is based on the principle of  Seniority-cum-merit is to provide motivation and ensure  carrier movement for Bank Staff. Apart from seniority,  merit based on performance coupled with weightage for  placement/posting in comparatively inconvenient areas,  will be the determining factors for promotion."

Chapter 3 of the said promotion policy dealing with promotions  to the post of Field Supervisors is extracted below :

"FROM SENIOR CLERK/CASHIER OR JUNIOR  CLERK/CASHIER OR CLERK/TYPIST OR  STENO/TYPIST TO FIELD SUPERVISOR.

Promotion from Senior Clerk/Cashier or Junior  Clerk/Cashier or Clerk/Typist or Steno/Typist to Field  Supervisor subject to satisfaction of minimum period of  service shall be, at present on the basis of assessment of his  overall performance based on appraisal reports on him and  his potentiality to shoulder higher responsibilities assessed  in the interview duly supplemented by weightage for  seniority placement/posting as detailed herein below :   

Percent weightage for various promotion criteria as  mentioned above will be as follow :

Total  Marks Seniority Posting at Rural Centres Posting at  difficult  Centres Performance Interview 100 20 10 5 40 25

3.1 Seniority :

Two marks for each completed year of service as Senior  Clerk/Cashier and one mark for each completed year of  service as Junior-Clerk/Cashier/Typist/Steno/Typist subject  to a maximum of 20 marks.

3.2 Posting at rural centers.

Two marks for each completed year of service in rural  center with a maximum of 10 marks.

3.3 Posting at difficult centers.

One mark for each completed year of posting at difficult  center (difficult centers to be identified by the Chairman  and approved by the Board) with a maximum of 5 marks.

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3.4 Performance/Appraisal

Performance will be assessed through the appraisal reports  annually received from his superiors in such form as may  be specified by the Chairman from time to time. Marks will  be awarded at the rate of 8 marks each for annual appraisal  ratings for the appraisal of preceding 3 years period with  the maximum of 24 marks and 16 marks for overall  performance of the Staff (maximum 16 marks).

Performance, on the basis as stated above, will be assessed  by a Staff Selection Committee constituted by the Board  for this purpose from time to time.

3.5 Interview :

(a)     The Staff Selection Committee constituted by the  Board for the purpose of promotion, will also work  as Interview Committee.

(b)     The Maximum marks for interview will be 25. By  and large, the candidates who have been found  eligible will be interviewed in respect of (1)  Personality (2) Poise and Manner (3) Power of  expression (4) Emotional Stability (5) Job  Knowledge including knowledge of Banking (with  reference to the functions/role of Regional Rural  Banks) (6) General Knowledge (7) Initiative (8)  Leadership quality (9) Potential and suitability and  overall assessment.

3.6.    Candidates who have secured less than 40% marks  in interview will not be considered for promotion and their  names will not be included in the final merit list.

3.7.    The list of successful candidates in the order of total  marks obtained will be placed by the Staff Selection  Committee before the Board, duly recommended for  consideration for appointments or promotion."

5.      On 3.7.1991 the appellant’s juniors were promoted as  Field Supervisors. The appellant was not promoted. He  therefore filed W.P. No.4485/1993 in the High Court of  Madhya Pradesh, challenging the promotion of two of his  juniors (third respondent herein and one V.P. Singh) on the  ground that the Bank had failed to make promotions on the  basis of seniority cum merit, prescribed under the Rules, and  had made promotions on the basis of merit cum seniority  contrary to the rules. Appellant contended that the procedure  whereby only 20 marks were allocated to seniority and 80  marks were allocated for other factors for the purpose of  assessment, and promoting those who secured the highest  marks on the basis of such assessment of overall performance,  clearly demonstrated that the promotions were not on the basis  of seniority cum merit.  

6.      The Bank resisted the said petition by contending that the  promotions were made on the basis of seniority cum merit and  not on merit cum seniority, in accordance with the Promotion  Policy dated 2.2.1989. It contended that the promotion policy  took note of seniority also by earmarking 20 out of 100 marks  for seniority and therefore the procedure adopted by the bank  for promotions to the post of Field Supervisor should be  considered as seniority cum merit. It was not disputed that the

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comparative merit of the candidates was assessed with  reference to performance appraisal, interview, posting at  rural/difficult centres and that the persons securing highest  marks in the order of merit were recommended for  consideration for promotion.

7.      A learned Single Judge of the Madhya Pradesh High  Court allowed the Appellant’s writ petition by order dated  13.10.1998 following the decision of this Court in B.V. Sivaiah  & Ors. V. K. Addanki Babu [1998 (6) SCC 720]. He held that  the promotions had been made not on the basis of seniority cum  merit, but on the basis of merit-cum-seniority. Consequently,  the promotion of third respondent herein and V.P. Singh were  quashed with a direction to the Bank to consider the case of  appellant for promotion to the post of Field Supervisor, along  with other eligible candidates. The said order of the learned  Single Judge was challenged by the third respondent and V. P.  Singh in a Letters Patent Appeal which was dismissed on  2.12.1998. It is stated that the special leave petition filed against  the decision in the Appeal was also dismissed.

8.      As no action was taken in pursuance of the said decision,  the appellant filed a contempt petition on 31.1.1999. The said  petition was disposed of by the High Court, on 10.5.1999,  recording the assurance of the Bank that the case of the  appellant will be considered and appropriate orders will be  passed within one month. Thereafter the bank again passed an  order of promotion dated 14.6.1999 promoting the third  respondent to the post of Field Supervisor. Appellant was not  promoted.  

9.      The appellant, therefore, once again approached the  Madhya Pradesh High Court in W.P. No.2800/1999 challenging  his non-promotion, contending that the bank has not made  promotion on the basis of seniority cum merit. He contended  that the Bank had failed to follow the decision of this Court in  SIVAIAH and the decision in his own case. He contended that  even under the basis of merit-cum-seniority adopted by the  Bank, he was entitled to promotion on the total percentage of  marks secured by him and he had been deliberately failed in the  interview to deny him promotion. The appellant stated that he  had secured the following marks in the assessment made for  promotion :  

Criteria Total  marks Marks secured  by appellant Seniority 20 16 Posting at rural centres  10 10 Posting at difficult centres 5 3 Performance 40 24 Interview 25 9 TOTAL

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100 62

10.     The bank resisted the second petition also. It contended  that the Departmental Promotion Committee had considered the  case of the appellant and other eligible candidates in terms of  the promotion policy contained in its circular dated 2.2.1989 by  assessing appellant’s performance and interviewing him. The  Bank contended that, as per the promotion policy, the  candidates who secure less than 40% of the 25 marks allocated  for interview will not be considered for promotion; that only  those who got 10 marks and above in the interview, were  eligible for promotion; and that appellant who had secured only  9 marks in interview was thus not eligible for promotion.

11.     A learned Single Judge of the MP High Court dismissed  the appellant’s writ petition (WP No. 2800/1999) by order  dated 26.4.2000. He held that in Sivaiah’s case (supra), this  Court had accepted the fixation of minimum standard for  assessing merit and a candidate who fails to fulfil the said  minimum standard cannot be promoted. The learned Single  Judge held that the appellant was not promoted, as he failed to  secure the prescribed minimum for interview. The learned  Single Judge was of the view that the method evolved for  adjudging the minimum merit was in consonance with the  principle of seniority-cum-merit, and the appellant having failed  in interview for promotion, he was not entitled to any relief.  

12.     The appellant challenged the said order before the  Division Bench which rejected the LPA by judgment dated  23.8.2001 affirming the decision of the learned Single Judge. It  held that the criteria adopted by the employer by prescribing  minimum qualifying marks for interview for determining the  suitability of the candidate for promotion was just and  reasonable and the appellant having failed to secure the  minimum marks in the interview, was rightly not promoted.  Both the single Judge and the Division Bench purported to  follow the principle laid down in para 37 of the Judgment in  SIVAIAH (supra). The said decision of the Division Bench of  the High Court is challenged in this appeal by special leave.

13.     As both parties have relied on the decision in Sivaiah  (supra), we may start by referring to the relevant observations  therein. The decision in SIVAIAH was a common judgment  which considered the meaning of the criterion ’seniority-cum- merit’ for promotion. The decision dealt with several distinct  batches of cases relating to different Regional Rural Banks,  which had different promotion policies, that is Rayalaseema  Grameena Bank, Pinakini Grameena Bank, Bastar Kshetriya  Gramin Bank, Rewa Sidhi Gramin Bank (respondent herein)  and Chhindwara-Seoni Kshetriya Gramin Bank.

The High Courts had taken the view that if "seniority-cum- merit" criterion is adopted for the purpose of promotion, then  first the seniormost eligible employee has to be tested to find  out whether he possesses the minimum required merit for  holding the higher post and only if he is not found suitable or  fit, his immediate junior ma be tested for the purpose of  promotion. The said view was assailed before this Court by the  various regional rural banks as well as the promoted officers  whose promotions had been set aside by the impugned  judgments of the High Court.

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This Court noted that in the matter of formulation of a policy  for promotion to a higher post, the two competing principles  which may be taken into account are inter-se seniority and  comparative merit of employees who are eligible for promotion.  This Court observed :  

"In Sant Ram Sharma vs. State of Rajasthan (AIR 1967 SC  1910), this Court has pointed out that the principle of  seniority ensures absolute objectivity by requiring all  promotions to be made entirely on grounds of seniority and  that if a post falls vacant, it is filled by the person who had  served longest in the post immediately below. But the  seniority system is so objective that it fails to take any  account of personal merit. It is fair to every official except  the best ones. An official has nothing to win or lose  provided he does not actually become so inefficient that  disciplinary action has to be taken against him. The  criterion of merit, on the other hand, lays stress on  meritorious  performance irrespective of seniority and even  a person, though junior but much more meritorious than his  seniors, is selected for promotion. The Court has expressed  the view that there should be a correct balance between  seniority and merit in a proper promotion policy. The  criteria of "seniority-cum-merit" and "merit-cum-seniority"  which take into account seniority as well as merit seek to  achieve such a balance."  

This Court also noted that while the principle ’seniority-cum- merit’ lays greater emphasis on seniority, ’merit-cum-seniority’  laid greater emphasis on merit and ability and seniority plays a  less significant role, becoming relevant only when merit is  approximately equal. After referring to several decisions  bearing on the issue, this Court enunciated the following  general principle in regard to promotions by seniority cum  merit (at para 18) which is relied on by the Appelllant :

"We thus arrive at the conclusion that the criterion of  "seniority-cum-merit" in the matter of promotion postulates  that given the minimum necessary merit requisite for  efficiency of administration, the senior, even though less  meritorious, shall have priority and a comparative  assessment of merit is not required to be made. For  assessing the minimum necessary merit, the competent  authority can lay down the minimum standard that is  required and also prescribe the mode of assessment of merit  of the employee who is eligible for consideration for  promotion. Such assessment can be made by assigning  marks on the basis of appraisal of performance on the basis  of service record and interview and prescribing the  minimum marks which would entitle a person to be  promoted on the basis of seniority-cum-merit."

Thereafter, this Court took up the cases of each Bank  separately. While dealing with the case relating to Chhindwara- Seoni Kshetriya Gramin Bank,  this Court observed thus (in  para 37) which is relied on by the Respondents  :   

"During the course of hearing of the appeal, the learned  counsel for the respondent-Bank has placed before us the  relevant documents relating to the impugned selection and  promotion. On a perusal of the said documents, we find that  50 marks out of the total of 100 marks were prescribed as  the minimum qualifying marks for interview and only those  who had obtained the qualifying marks in interview were  selected for promotion on the basis of seniority. It was,

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therefore, a case where a minimum standard was prescribed  for assessing the merit of the candidates and those who  fulfilled the said minimum standard were selected for  promotion on the basis of seniority. In the circumstances, it  cannot be said that the selection has not been made in  accordance with the principle of "seniority-cum-merit". We  are, therefore, unable to uphold the impugned judgment of  the High Court. The appeal has to be allowed and the  impugned judgment of the High Court dated 7.2.1997  passed by the learned Single Judge of the High Court has to  be set aside and the promotion of the appellant on the post  of Area/Senior Manager under order dated 8.4.1993 has to  be affirmed."

14.     Before considering the effect of observations in para 37  of the decision in SIVAIAH, relating to Chindwara-Seoni  Kshetriya Gramin Bank, let us refer to what this Court held  with reference to other Banks :  

(i)     Rayalaseema Grameena Bank had adopted a system of  assessment where weightage to be given (total of 120  marks) was divided into seniority (34 marks),  qualification (10 marks), interview (20 marks) and  performance (56 marks). Only those officers who had  secured the higher number of marks were ultimately  promoted. On these facts, this Court held :   "It is not a case where minimum qualifying marks  are prescribed for assessment of performance and  merit and those who secure the prescribed minimum  qualifying marks are selected for promotion on the  basis of seniority. In the circumstances, it must be  held that the High Court has rightly come to the  conclusion that the mode of selection that was in  fact employed was contrary to the principle of  "seniority-cum-merit" laid down in the Rules."  

(ii)    Pinakini Grameena Bank had adopted a system of  assessment where weightage to be given (total of 100  marks) was divided into seniority (55 marks), passing  CAIIB (5 marks) performance (25 marks) and interview  (15 marks). Only those who secured highest number of  marks were promoted. This Court held : "The said circular did not prescribed minimum  qualifying marks for assessment of performance and  merit on the basis of which an officer would be  considered for being selected and, as pointed out by  the High Court, the selection was made of only  those officers who secured the highest number of  marks amongst the eligible officers. In the  circumstances, the High Court, in our view, has  rightly held that this method of selection was  contrary to the principle of "seniority-cum-merit"  and it virtually amounts to the application of the  principle of "merit-cum-seniority".  

(iii)   Bastar Kshetriya Gramin Bank made selections on the  basis of interview of all the eligible officers by the Staff  Selection Committee and a select list of five persons was  prepared and on that basis promotions were made. This  Court held :  "It is not disputed that the selection was made on  the basis of marks assigned on the basis of  interview by the Selection Committee and those  who secured the highest marks were selected. The  selection process adopted for the purpose of

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promotion to the post of Area Managers/Senior  Managers was thus not in consonance with the  principle of "seniority-cum-merit" and the  promotions were not made in accordance with the  Rules."  

15.     Thereafter, this Court considered the case of the first  Respondent Bank itself (in paras 33 to 35). There also the bank  relied on the very same promotion policy contained in circular  dated 2.2.1989 (with which we are concerned) for promotion to  the post of Area/Senior Manager by seniority cum merit. The  promotion policy provided that the promotion from the post of  officer to Area/Senior Manager shall be on the basis of his  overall performance based on appraisal reports and his  potentiality shall be assessed in the interview, duly  supplemented by weightage for job responsibility, placement,  posting mobility etc. 100% weightage was divided into  seniority (15 marks), job responsibility (12 marks),  placement/posting mobility (8 marks), performance (40 marks)  and interview (25 marks). As in the case of promotion to the  post of Field Supervisors, the policy provided that the  candidates who secure less than 40% of the marks allocated for  interview, shall not be considered for promotion and the list of  successful candidates in the order of total marks obtained will  be placed by the Staff Selection Committee for consideration  for promotion. The challenge to the promotion of Area/Senior  Managers on the above basis was upheld by the learned Single  Judge and confirmed in Appeal b the Division Bench. This  Court dismissed the appeals on the following reasoning :

"For the same reasons, civil appeals arising out of Special  Leave Petition [C} Nos.19965-19966 of 1997 are also  liable to be dismissed inasmuch as according to the  promotion policy dated 2.2.1989, selection was made on  the basis of the total number of marks obtained by the  eligible candidates. The criterion of the promotion policy  cannot be regarded as being in consonance with the  principle of "seniority-cum-merit" as prescribed under the  Rules."

16.     It is thus clear that this Court did not accept the  promotion policy contained in circular dated 2.2.1989 as being  in consonance with the principle of seniority-cum-merit. This  Court held that the policy which did not prescribe a minimum  standard for assessing merit and which promoted candidates on  the basis of comparative merit, with reference to total marks  obtained by the eligible candidates, followed the merit-cum- seniority principle. The decision in SIVAIAH relating to  Area/Senior Managers of the first respondent bank was  followed by the High Court in the case of appellant, in its  judgment dated 13.10.1998 and it was held that the procedure  adopted by the first respondent bank for promotion of third  Respondent and V.P. Singh as per circular dated 2.2.1989 was  contrary to the Rules which required promotions by seniority- cum-merit, and the bank was directed to redo the promotions by  considering the case of appellant and other eligible candidates  by adopting the criteria of seniority cum merit. That decision  attained finality as the appeal and SLP were rejected. It may be  stated that even prior to the decision in SIVAIAH relating to  Area/Senior Managers of the first respondent bank, the same  view had been expressed in the earlier judgment dated  9.10.1996 of the Division Bench of the Madhya Pradesh High  Court in LPA No.151/1996 and connected cases and civil  appeals arising out of SLP (c) Nos.17780-81/1997 filed against  the said judgment dated 9.10.1996 had been dismissed.

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Therefore we have several rounds of litigation which had been  fought up to this court where the High Court and this court have  repeatedly and clearly held that the procedure prescribed, in the  promotion policy circular dated 2.2.1989, is not in consonance  with the principle of seniority-cum-merit prescribed for  promotion under the Rules but amounted to following the  principle of merit cum seniority and therefore vitiated. What is  surprising is that, in spite of these decisions, the first respondent  bank again adopted the very same procedure contained in the  promotion policy of 2.2.1989 and again failed to promote the  appellant by assigning him marks of 16 (20), 10 (10), 3(5), 24  (40) and 9 (25) and held that he was not eligible for promotion  as he did not secure the minimum marks of 10 prescribed for  interview. But, admittedly, there was no overall minimum and  the procedure required assessment of comparative merit. This is  not therefore a case of the appellant failing to secure the  minimum necessary merit required for promotion but a case  where the appellant’s  entitlement to promotion was sought to  be assessed by adopting a procedure which allotted 20 marks  for seniority, 40 marks for performance, 15 marks for posting at  rural and difficult centres and 25 marks for interview. The bank  has persisted in adopting the merit-cum-seniority procedure in  spite of the decisions of this Court in several rounds of  litigation referred to above. As the entire promotion procedure  adopted by the bank as per its policy dated 2.2.1989 has stood  rejected by the High Court and this court in SIVAIAH (supra)  as also in the earlier round of litigation of Appellant, the  promotion of third Respondent and non-promotion of appellant  by adopting the very same procedure is liable to be interfered  with.  

17.     Interviews can be held and assessment of performance  can be made by the Bank in connection with promotions. But  that can be only to assess the minimum necessary merit. But  where the procedure adopted, does not provide the minimum  standard for promotion, but only the minimum standard for  interview and does the selection with reference to comparative  marks, it is contrary to the Rule of ’seniority-cum-merit’. This  aspect of the matter has been completely lost sight of by the  learned Single Judge and the Division Bench of the High Court  in this round of litigation. As noticed above, they have  proceeded on the basis that the appellant having failed to secure  the minimum marks prescribed for interview, was rightly  denied promotion, by ignoring the principle laid down by this  court in SIVAIAH in regard to seniority-cum-merit. At all  events, as the promotion policy adopted by the Bank was held  to be illegal in the earlier round of litigation (W.P. No.  4485/1993 dated 13.10.1988), the Bank could not have adopted  the same policy to again reject the Appellant for promotion. We  may also note that the law laid down in SIVAIAH was  reiterated in Sher Singh vs. Surinder Kumar [1998 (9) SCC  652] wherein this Court had occasion to consider a similar  question relating to the promotion for the post of clerk to Field  Supervisor  in the case of another Gramin Bank. This Court  held that as the criterion for making promotion from the post of  clerk to that of Field Supervisor was seniority-cum-merit but  the Bank did not follow the criterion of seniority-cum-merit but  made promotions on the basis of merit-cum-seniority, the  promotion was vitiated and therefore invalid.  

18.     We will now deal with para 37 in SIVAIAH (supra)  relied on by the Respondents. Para 37 related to Chhindwara- Seoni Kshetriya Gramin Bank where the procedure adopted for  promotion was different from the criteria that was adopted by  the Rewa Sidhi Gramin Bank, first respondent herein. In the

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case of Chhindwara Seoni Kshetriya Bank, the assessment of  minimum necessary merit was by interview. The candidate who  secured a minimum of 50 out of 100 marks in the interview,  was selected for promotion on the basis of seniority. It was thus  found to be a case where minimum standard was prescribed for  assessing the merit of the candidates and those who qualified by  securing the minimum marks (50%) were promoted strictly as  per seniority. Thus, it was in consonance with the principle of  seniority-cum-merit. Therefore, the observations in para 37 of  SIVAIAH are of no assistance to Respondents. As we have  already noticed, in this case, the procedure is not one of  ascertaining the minimum necessary merit and then promoting  the candidates with the minimum merit in accordance with  seniority, but assessing the comparative merit by drawing up a  merit list, the assessment being with reference to marks secured  for seniority, performance, postings at rural/difficult places and  interview. The fact that the appellant had failed to secure the  minimum marks in interview, is not relevant as the entire  procedure adopted by the bank (of which interview is a part) is  found to be vitiated and not in consonance with the principle of  seniority cum merit.  

19.     In this view of the matter, we do not propose to go into  the contention of the appellant that though he had secured very  high percentages (overall 62%), with the intention of  deliberately denying him promotion, he had been failed in  interview by giving him 9 marks as against the minimum of 10  for interview.  

20.     The learned counsel for the Bank placed reliance on the  decision of this Court in K. Samantaray vs. National  Insurance Co. Ltd., [2004 (9) SCC 286), where this Court  following the earlier decision in Syndicate  Bank SC & ST  Employees Assn. Vs. Union of India [1990 Supp.SCC 350],  reiterated that apart from the recognized methods of seniority- cum-merit and merit-cum-seniority, there can also be a third  method, that is a hybrid mode of promotion. This Court  observed :   

"While laying down the promotion policy or rule, it is  always open to the employer to specify the area and  parameter of weightage to be given in respect of merit and  seniority separately so long as policy is not colourable  exercise of power, nor has the effect of violating any  statutory scope of interference and other relatable matters."   

But in that case promotions were not governed by any statutory  Rules, but by a promotion policy. The above observations made  with reference to such a policy, which wholly occupied the field  insofar as promotion is concerned, are not relevant where the  statutory Rules require promotion by seniority-cum-merit.  

21.     The next question that arises for consideration is the  relief to be granted. The appellant was first considered for  promotion during 1991 and was not promoted, by wrongly  adopting the principle of merit-cum-seniority. The said  procedure was found to be erroneous by the Single Judge,  Division Bench and by this court. The Bank was directed to  consider the case of Appellant for promotion on the basis of  seniority-cum-merit. Thereafter, in the contempt proceedings  initiated by the appellant, the Bank undertook to comply with  the order directing consideration of the appellant’s case by the  procedure of seniority cum merit. But the Bank, again by  adopting the merit-cum-seniority method, failed to promote the  appellant and promoted third respondent.  The procedure

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adopted by the Bank had been found to be faulty on three  occasions by this Court and the High Court, one of which was  in the case of Appellant himself.  The appellant had been denied  promotion for more than 16 years by repeatedly adopting such  an erroneous procedure. In the circumstances, we do not think it  necessary to drive the appellant once again to face the process  of selection for promotion. This Court in Comptroller and  Auditor General of India v. K.S. Jagannathan [1986 (2)  SCC 679] observed thus :                                 "There is thus no doubt that the High Courts in India  exercising their jurisdiction under Article 226 have the  power to issue a writ of mandamus or a writ in the nature of  mandamus or to pass orders and given necessary directions  where the government or a public authority has failed to  exercise or has wrongly exercised the discretion conferred  upon it by a statute or a rule or a policy decision of the  government or has exercised such discretion mala fide or  on irrelevant considerations or by ignoring the relevant  considerations and materials or in such a manner as to  frustrate the object of conferring such discretion or the  policy for implementing which such discretion has been  conferred. In all such cases and in any other fit and proper  case a High Court can, in the exercise of its jurisdiction  under Article 226, issue a writ of mandamus or a writ in the  nature of mandamus or pass orders and given directions to  compel the performance in a proper and lawful manner of  the discretion conferred upon the government or a public  authority, and in a proper case, in order to prevent injustice  resulting to the concerned parties, the court may itself pass  an order  or give directions which the government or the  public authority should have passed or given had it  properly and lawfully exercised its discretion."

Having regard to the factual background of the case, and having  regard to the fact that even under the merit cum seniority basis  adopted by the bank the appellant had secured high marks and  he was denied promotion on the ground that he failed to secure  minimum marks in the interview, there is no need to refer the  matter for fresh consideration. With a view to do complete  justice, in exercise of our power under Article 142 we hereby  direct the first respondent bank to promote the appellant as a  Field Supervisor, from the date the third defendant was  promoted as Field Supervisor and place him above the third  Respondent. However, he will be entitled to monetary benefits  flowing from such promotion only prospectively, though the  pay is to be refixed with reference to the retrospective date of  promotion.  

22.     This appeal is allowed accordingly.