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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

                                                                              CIVIL APPEAL NO. 977 OF 2009

(Arising out of Special Leave Petition (Civil) NO.1248 of  2007)

Pragjyotish Gaonlia Bank (now known as Assam Gramin  Vikash Bank) & Anr.        ...   Appellants  

Vs.

Shri Brijlal Das         ...   Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

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2. The  appellant  Bank,  which  is  a  rural  bank  and  is  

governed by the circulars issued from time to time by the  

National  Bank  for  Agriculture  and  Rural  Development  

(hereinafter referred to as ‘NABARD‘), has challenged the  

decision of the Division Bench of the Gauhati High Court,  

allowing  Writ  Appeal  No.  518  of  2002,  and  directing  the  

appellant Bank to issue necessary orders for giving effect of  

promotion  to  the  respondent  No.1,  Brijlal  Dass,  to  the  

Officer Scale II Grade from the date his juniors in the Grade  

of Officers Scale I i.e. respondent Nos. 17, 18 and 19, were  

promoted to the Officers Scale II.  

3. In  1997  the  appellant  Bank  categorised  17  additional  

Scale I branches as additional Scale II branches.  The Bank,  

therefore, proposed to promote 17 Officers of the Scale I  

Grade to the Grade of Officers Scale II and issued a Circular  

to that effect on 10.6.2007. As per the eligibility criteria,  

all officers, who had put in minimum service of 8 years in  

the Officers’ cadre as on 31.12.1996, were eligible to appear  

for an interview for internal promotion. The total number of  

candidates would be restricted to 4 four times the number of  

vacancies. It was decided by the Bank that such promotion  

would be on the basis of merit-cum-seniority, and that out of  

a maximum of 150 marks 40 marks were set apart for the number  

of years in service.  The remaining 110 marks were allocated

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towards performance at the work place and in the interview,  

indicating that the selection procedure was to be on the  

basis of merit-cum-seniority.   

4. The case of the appellant Bank is that no reservation  

had been provided for Scheduled Castes and Scheduled Tribes  

candidates in the matter of promotion by selection from Scale  

I  to  Scale  II  and  from  Scale  II  to  Scale  III  posts  in  

Regional  Rural  Banks,  and  that  candidates  were  generally  

subjected to interview /written tests. However, in order to  

provide some benefit to Scheduled Castes and Scheduled Tribes  

candidates a concession was included in the Circular dated  

10.6.1997 which was in keeping with certain conditions which  

had been provided by the Circular dated 9.11.1994 issued by  

NABARD and also certain other Government Circulars.  The said  

concession is set out hereinbelow:-

“Reservation Posts:-

The  scheduled  castes  and  scheduled  tribes  Officers, who are senior enough in the zone of  consideration for promotion so as to be within the  number of vacancies for which the select list has  to  be  drawn  up  would  be  included  in  the  list  provided  they  are  not  considered  unfit  for  promotion.”

5. In terms of the said concession, officers belonging to  

Scheduled Castes and Scheduled Tribes, falling within the  

number of vacancies from the list drawn up on the basis of

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seniority, would be promoted to the Officers Scale II Grade  

automatically, provided they were not unfit for promotion.

6. At  this  stage  it  may  be  indicated  that  since  17  

vacancies  were  available,  68  candidates  were  called  for  

interviews  for  filling  up  the  said  17  vacancies.   The  

respondent No.1 did not fall within the first 17 names in the  

aforesaid  list  but  was  placed  at  S.No.39  as  per  his  

seniority.  As a result, though, he was called for interview,  

he was not automatically selected for promotion to the Scale  

II grade.

7. The respondent No.1 and one Shri Nagendra Chander Dass,  

both of whom figured in the list of 68 eligible candidates  

and were within the zone of consideration,  were called for  

the interview but were not found fit for promotion. They,  

accordingly, filed Civil Writ Petition No.1601 of 1998 for  

quashing the abovementioned Circular dated 15.9.1997 issued  

by the Bank on the basis whereof the successful candidates  

have been promoted and also prayed that since both of them  

belong to the Scheduled Caste community they should have been  

appointed against the reserved posts and that the reservation  

policy followed by the Bank was contrary to the reservation  

policy followed by the Government of Assam.

8. The learned single Judge disposed of the writ petition

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on 17.7.2002, without expressing any opinion with regard to  

Nagender Chander Dass as he had been promoted in the month of  

February 2000, after he succeeded in the promotion test held  

on 15.2.2000 during the pendency of the writ petition. While  

disposing of the writ petition the learned single Judge while  

taking note of the fact that the respondent No.1 had been  

punished in a disciplinary proceeding erroneously noted the  

dates when the punishment was imposed and when it came to an  

end. Instead of indicating that the punishment awarded to the  

respondent No.1 whereby 5 increments had been stopped w.e.f.  

1992 and ending in 1997 the learned single Judge observed  

that the punishment had been imposed in 1995 and it came to  

an end in the year 2000.  The importance of the said error  

would be evident from the fact that whereas the punishment of  

respondent  NO.1  came  to  an  end  in  March  1997,  the  

Departmental  Promotion  Committee  meeting  was  held  on  

15.9.1997 and on that date the learned single Judge found  

that respondent No.1 was eligible for promotion since the  

period of punishment was already over, and directed that the  

respondent No.1’s promotion should be considered by the bank  

along with other eligible candidates as and when the next  

promotion was considered by the authorities. This lapse on  

the part of the single Judge was used to his advantage by the  

respondent in preferring an appeal before the Division Bench

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of the Gauhati High Court. The Division Bench without going  

into the question of eligibility, apart from the aforesaid  

error in noting the dates relating to the punishment order of  

2001 set aside the order of the single Judge dismissing the  

writ petition and allowed the writ appeal with direction to  

appoint the respondent No.1 in the Officers’ Scale Grade II  

from the date his juniors in the cadre of Officers Scale I  

had been promoted to the higher scale.

9. The  Bank  has  filed  the  present  appeal  against  the  

aforesaid order of the Division Bench and has in particular  

challenged the direction given to the Bank to promote the  

respondent No.1 to the Officers Grade Scale-II.

10. Appearing  for  the  appellant  Bank,  Mr.  Dhruv  Mehta,  

submitted  that  the  Division  Bench  of  the  High  Court  had  

decided the appeal on an erroneous understanding of the issue  

involved. Mr. Mehta submitted that without applying its mind  

to the facts of the case, the Division Bench simply repeated  

the findings of the learned single Judge. The Division Bench  

lost sight of the fact that first of all the question of  

eligibility  for  being  considered  for  promotion  had  to  be  

cleared before clearing the cases of the candidates who had  

been  called  for  the  interview  could  be  taken  up  for  

consideration.  Mr.  Mehta  emphasised  the  fact  that  no

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reservation was provided for in respect of the 17 vacancies  

and only a concession had been made which is reflected in the  

circular dated 15.9.1997 issued by the bank for making the  

promotions in the vacancies to the post of Officer Scale II.  

The  relevant  portion  of  the  circular  dated  10.6.1997  

regarding reservation posts has been extracted hereinbefore  

and according to Mr. Mehta the same was not for the purpose  

of reservation of posts as such, but for providing a benefit  

or  concession  to  a  Scheduled  Castes  or  Scheduled  Tribes  

candidate in the matter of promotion subject to eligibility.  

Mr.  Mehta  submitted  that  the  respondent  No.1  and  Shri  

Nagendra Chander Dass were within the seniority which brought  

them  into  the  zone  of  consideration  and  enabled  them  to  

appear  in  the  interview,  but  on  the  strength  of  their  

performance they were not considered eligible to fill up any  

of the vacant 17 posts. Mr. Mehta urged that had they been of  

sufficient seniority they would have been included in respect  

of one of the 17 vacancies which would have entailed them to  

be  automatically  included  within  the  available  number  of  

vacancies for automatic appointment. Mr. Mehta urged that  

this was the extent of reservation as was contemplated in the  

Bank’s circular dated 10.6.1997.  In other words, it was not  

the post which was sought to be reserved but any of the  

available  post  could  have  been  filled  in  by  a  Scheduled

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Castes or Scheduled Tribes candidate if he was found eligible  

according  to  the  norms.  Having  been  placed  at  the  39th  

position in the list of candidates who were to be interviewed  

for  the  vacant  17  posts,  the  respondent  No.1  was  duly  

interviewed but he did not clear the requisite number of  

marks  which  would  have  made  him  eligible  for  being  

automatically promoted and appointed.

11. Mr.  Mehta  urged  that  this  point  had  been  completely  

misunderstood  or  overlooked  by  the  Division  Bench  while  

allowing the writ appeal and also directing the bank to give  

appointment to the respondent No.1. It was submitted that the  

same was contrary to the Policy of the appellant and, if  

followed could have serious consequences not only for the  

respondent  No.1  herein,  but  also  for  all  those  who  had  

already been appointed against the vacancies in question.  

12. Referring to a three-Judge Bench decision of this Court  

in National Federation of S.B.I. v. Union of India [1995) 3  

SCC 532] Mr. Mehta submitted that the provisions similar to  

that  of  the  Circular  dated  10.6.1997  had  fallen  for  

consideration and the same had been very lucidly explained to  

mean that the list of eligible candidates for consideration  

for filling up the vacancies is but another name for ‘the  

zone of consideration’ referred to in the circular of the

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bank  dated  10.6.1997,  where  as  those  candidates  who  came  

within  the  preferred  requisite  vacancies  would  be  

automatically  given  the  benefit  of  promotion  without  any  

further  process  of  selection.  In  other  words,  if  the  

Scheduled Caste or Scheduled Tribe candidates, on the basis  

of the marks awarded came within the first 17 vacancies    he  

would not be subjected to any further selection process but  

would be automatically granted promotion which would not be  

the  case  with  candidate  from  the  general  category.  The  

respondent  No.1  having  been  placed  at  serial  no.  39  was  

entitled to be called for interview, but Mr. Mehta submitted  

that  the  said  concession  in  the  Circular  dated  10.6.1997  

would not apply to him since he was not within the first 17  

candidates  which  would  have  entitled  him  to  automatic  

selection.  Mr. Mehta urged that the direction given by the  

Division  Bench  of  the  High  Court  was  contrary  to  the  

concession contained in the Circular dated 10.6.1997 and was  

liable  to  be  set  aside,  having  regard  to  the  fact  that  

Regional  Rural  Banks  were  governed  by  the  Regional  Rural  

Banks Act, 1976, and the circulars issued by NABARD and not  

by the State Government. Furthermore, having once submitted  

to the selection process and having proved unsuccessful the  

respondent No.1 was not entitled to challenge the selection  

process as was held by this Court in the case of G.N. Nayak

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v. Goa University and others [(2002) 3SCC 712].

13. On the other hand, it was urged by Mr. Manish Goswamy,  

learned advocate for the respondent, that the claim of the  

appellant  Bank  was  erroneous  and  the  matter  had  been  

considered by the Division Bench in its correct perspective  

and did not warrant any interference. It was urged that the  

question of reservation had been categorically included in  

the circular dated 10.6.1997 issued by the Bank in order to  

provide  for  reservation  and  by  not  following  the  said  

directions,  the  appellant  Bank  had  erred  in  negating  the  

claim of the respondent No.1.

14. Mr. Goswamy submitted that the provisions for promotion,  

as engrafted in the Circular dated 10.6.1997, was to benefit  

candidates from Scheduled Castes and Scheduled Tribes coming  

within the zone of consideration and was not confined only to  

candidates who came within the number of vacancies.

 15. Replying  to  Mr.  Mehta’s  contentions,  Mr.  Goswamy  

submitted that the respondent was the lone Scheduled Caste  

candidate amongst all the candidates and since no roster was  

maintained and no post was reserved within the 17 vacancies  

available, at least one post out of the 17 vacancies should  

have been reserved for a Scheduled Caste candidate, in view  

of the fact that at least 7 per cent of the vacancies was

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required to be kept reserved according to the reservation  

policy of the State Government.  It was also pointed out that  

even  if  the  Assam  Scheduled  Castes  and  Scheduled  Tribes  

(Reservation of Vacancies in Service and Posts) Act, 1978,  

was held not apply to the Regional Rural Development Banks  

which  are  governed  by  NABARD  and  Central  Government  

circulars, in view of the policy of reservation indicated  

both in the NABARD Circular dated 9.11.94 and the Bank’s  

Circular dated 10.6.1997, the Respondent No.1 was entitled to  

be appointed against one of the 17 vacancies.

16. Having  carefully  considered  the  submissions  made  on  

behalf of the respective parties, we are inclined to agree  

with Mr. Mehta that the provision relating to reservation  

posts, extracted hereinabove, contained in the Circular dated  

10th June, 1997, has been wrongly interpreted by the Division  

Bench of the High Court.  The said condition is in the nature  

of a concession as was contemplated in the circular dated 9th  

November,  1994,  issued  by  NABARD  in  order  to  give  an  

opportunity to a Scheduled Caste or Scheduled Tribe candidate  

to be automatically appointed, if he came within the number  

of vacancies available.  It was a concession to enable such a  

candidate to avoid the process of selection, which all the  

other candidates were required to undergo.

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17. The said provision has been very elaborately explained  

by the Three-Judge Bench of this Court in National Federation  

of S.B.I. v. Union of India (supra).  As has been explained  

in the said judgment, the zone of consideration is the list  

of selected candidates chosen in order of seniority to be  

considered  for  the  purpose  of  filling  up  the  available  

vacancies  and  merely  by  coming  within  the  zone  of  

consideration a Scheduled Caste or Scheduled Tribe candidate  

would not be entitled to automatic selection.  The concession  

relating to reservation does not mean that any of the vacant  

posts were required to be kept reserved for such Scheduled  

Caste or Scheduled Tribe candidate.  It is only when such a  

candidate came within the number of vacancies that such a  

concession would be applicable to him/her for appointment  

without going through the selection process.  In the instant  

case, the Respondent No.1 was at Serial No.39 and did not,  

therefore, come within the number of available vacancies and,  

consequently, he had to compete with all the other candidates  

for  being  selected  for  one  of  the  vacancies.   The  High  

Court’s understanding that as a Scheduled Caste candidate,  

the petitioner, was entitled to be considered for one of the  

vacancies,  is,  therefore,  erroneous  since  the  provision  

relating to the aforesaid concession does not contemplate  

such a right in favour of a Scheduled Caste or Scheduled

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Tribe candidate.

18. The appeal filed on behalf of the Bank must, therefore,  

succeed and is allowed.  The judgments of both the learned  

Single Judge as well as the Division Bench of the High Court  

are set aside.

19. There will, however, be no order as to costs.       

________________J. (ALTAMAS KABIR)

________________J. (MARKANDEY KATJU)

New Delhi Dated: 13.02.2009.