# Rajendra Prasad Yadav v. Chairman, Sanyukt Kshetriya Gramin Bank, Azamgarh & others

- **Citation:** (2008) 1 ILRA 298
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-01-28
- **Case number:** Special Appeal No. 1070 of 1998
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-yadav-v-chairman-sanyukt-kshetriya-gramin-bank-azamgarh-others-41057
- **Pages:** 6

## Headnote

Constitution of India-Art. 226-Practice &
Procedure-facts
stated
in
Rejoinder
affidavit-can not be ignored-provided
proper opportunity to contravening the
same given.

Held: Para 22

We may also record that if certain facts
are stated in the rejoinder affidavit for
the first time, the same cannot be
ignored by a Court of Law, inasmuch as
the statements so made are supported
by affirmance on oath. These new facts,
however,
may
not
be
taken
into
consideration
unless
and
until
an
opportunity
is
afforded
to
the
respondents in the writ petition to
controvert these new facts stated in the
rejoinder
affidavit.
Therefore,
the
Hon'ble Single Judge was not justified in
ignoring the facts, which were stated in
the rejoinder affidavit.
Case law discussed:
AIR 1976 SC 490, 1974 (1) SLR 217, 1999 SCC
(L&S) 788, AIR 1996 SC 2733, AIR 1974 SC
87, AIR 1998 SC 2565, AIR 2000 SC 2513,
(2001) 5 SCC 60; (2002) 4 SCC 16, JT 1990
(3) SC 468, 2004 (1) ESC 19, (2006) 6 SCC
145

## Text

298 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
admitted to the Final Law course in the
same college but his results for the Pre
Law and Inter Law examinations were not
declared. The appellant had also made
representations to the Bar Council of
India and the Administrator of Berhampur
University, who replied that since the
appellant had secured less than 39.5%
marks in his M.A. degree examination, he
was not eligible for admission to the law
Course. In was in that context that the
Apex Court had decided that once a
candidate had been admitted in Law
course and had passed Pre Law and
Intermediate law examinations, he was
entitled to declaration of result of the final
year.

14. In the instant case, it is not in
dispute that the petitioner had been
admitted in B. Tech. course of session
2004 of U.P. Technical University. It is
also not in dispute that the petitioner did
not
clear
all
papers
of
1st
year
examination i.e. 1st and 2nd semester.
Though the petitioner has given names of
some students in paragraph 12 & 13 of the
writ petition who are said to have been
promoted but the same has been denied
by the University that these students have
been promoted alongwith the petitioner
and they all have cleared their first year
examinations i.e. 1st and 2nd semester
whereas the petitioner is the only student
who has not cleared all papers of the first
year. According to the counsel for the
University, this relaxation has been given
to the petitioners under powers of
Ordinance 23 applicable at that time.

15.

Therefore,
no
case
of
discrimination has been made out by the
petitioner. Those students who have been
granted promotion by relaxation for
appearing in 2nd to 4th year, they all have
cleared first year examinations.

16. This being the position, this
Court is not inclined to interfere in the
matter. The counsel for the University
states that as soon as the petitioner clears
all papers of the first year, his result of
third year will be declared which has been
withheld
in
accordance
with
the
Ordinance and if the petitioner is declared
passed, he will be given admission. The
petitioner may clear all papers of the 1st
year examination if he so desires. No
student can be permitted to be promoted
in the next semester in contravention of
the Ordinance. Once relaxation has been
granted, he should clear all papers of the
1st year examinations.

17. The writ petition is dismissed.
No order as to costs.
Petition
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 1070 of 1998

Rajendra Prasad Yadav ...Appellant
Versus
Chairman, Sanyukt Kshetriya Gramin
Bank, Azamgarh & others ...Respondents

Counsel for the Appellant:
Sri G.K. Singh
Sri V.K. Singh

Counsel for the Respondents:
Sri A.B. Saran
Sri Parmatma Rai
1 All] Rajendra Prasad Yadav V. Chairman Sanyukt Kshetriya Gramin Bank and others
299
Constitution of India-Art. 226-Practice &
Procedure-facts
stated
in
Rejoinder
affidavit-can not be ignored-provided
proper opportunity to contravening the
same given.

Held: Para 22

We may also record that if certain facts
are stated in the rejoinder affidavit for
the first time, the same cannot be
ignored by a Court of Law, inasmuch as
the statements so made are supported
by affirmance on oath. These new facts,
however,
may
not
be
taken
into
consideration
unless
and
until
an
opportunity
is
afforded
to
the
respondents in the writ petition to
controvert these new facts stated in the
rejoinder
affidavit.
Therefore,
the
Hon'ble Single Judge was not justified in
ignoring the facts, which were stated in
the rejoinder affidavit.
Case law discussed:
AIR 1976 SC 490, 1974 (1) SLR 217, 1999 SCC
(L&S) 788, AIR 1996 SC 2733, AIR 1974 SC
87, AIR 1998 SC 2565, AIR 2000 SC 2513,
(2001) 5 SCC 60; (2002) 4 SCC 16, JT 1990
(3) SC 468, 2004 (1) ESC 19, (2006) 6 SCC
145

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. Heard counsel for the parties.

2. Nobody has put in appearance on
behalf of respondent Nos. 4 to 46 despite
service by publication.

3. This special appeal is directed
against the judgment and order of the
Hon'ble
Single
Judge
dated
07th
November, 1998 passed in Civil Misc.
Writ Petition No. 12315 of 1990;
Rajendra Prasad Yadav Vs. Chairman,
Sanyukt
Kshetriya
Gramin
Bank,
Balrampur Branch, Azamgarh. The facts
giving rise to the present special appeal
are as follows:

4. Sanyukt Kshetriya Gramin Bank,
Balrampur Branch, Azamgarh is a rural
bank. Petitioner-appellant was appointed
on the post of Junior Clerk-cum-Cashier
on 17.02.1982. He was promoted on the
post of Senior Clerk-cum-Cashier in the
year 1984. The next promotional post in
the cadre is of Field Supervisor. The
petitioner-appellant filed writ petition
before this Court challenging therein that
the criteria for promotion on the post of
Field Supervisor is seniority-cum-merit,
persons junior to petitioner and having
inferior service record have been granted
such promotion on the post of Field
Supervisor under the select list published
on 12.04.1990. He, therefore, prayed that
he may also be granted similar promotion
from the date persons junior to him have
been promoted from the date persons
junior to him have been promoted.

5. On behalf of the respondents
counter affidavit was filed in the writ
petition and it was contended that the
criteria for promotion had been laid down
under the circular of the Board dated 10th
April, 1989, wherein after interview
assessment of performance for promotion
to the post of Field Supervisor had been
made. Petitioner could not succeed
therefore superseded. Reliance has been
placed upon the judgment of Hon'ble
Supreme Court in the case of Sri
Jagathigowda C.N. & Ors. V. Chairman
Cauvery Gramin Bank & Ors.; AIR 1996
SC 2733.

6. The Hon'ble Single Judge, after
hearing counsel for the parties, under the
impugned judgment and order held that
petitioner had appeared in the interview
and since he had not been selected it
cannot be said that his any legitimate
claim has been ignored. It has further
300 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
been held that the petitioner could not
demonstrate that the persons mentioned in
paragraphs 12 and 16 of the writ petition
had performed poorly in interview and
assessment report was equal to that of the
petitioner or lesser than that of the
petitioner. Lastly it has been recorded that
since there is no allegation of bias or mala
fide against the selection committee
neither it has been alleged that the
petitioner had outstanding or very good
performance, he is not entitled to any
relief.

7. The Hon'ble Single Judge in last
but one paragraph of the said judgment
has further noticed that certain facts stated
for the first time in the rejoinder affidavit
do make out a case in favour of the
petitioner but since no opportunity has
been given to the respondents to counter
the said facts, the facts so pleaded in the
rejoinder affidavit can not be taken note
of.

8. The judgment of the Hon'ble
Single Judge is being questioned basically
on the ground that the Hon'ble Single
Judge has failed to appreciate that the
criteria, as admittedly applicable for
promotion
on
the
post
of
Field
Supervisor, in the facts of the case was
seniority-cum-merit. The criteria has been
explained by the Hon'ble Supreme Court
in the series of judgments and it has been
held that it is open to employer to fix a
minimum standard which every candidate
must clear for being promoted under the
said criteria and all those candidates who
clear the said standard become entitled for
promotion in order of seniority. It is,
therefore, submitted that the Hon'ble
Single Judge has failed to appreciate the
aforesaid legal proposition qua criteria to
be applied for promotion under the rules
applicable. It is also contended that if
certain new facts had been stated in the
rejoinder affidavit, the same could not
have been ignored, at best time could
have been granted to respondents to file
reply to the additional facts stated in the
rejoinder affidavit, which was neither
prayed for nor granted.

9. The first contention raised on
behalf of the petitioner may be examined
with reference to the law laid down by the
Hon'ble Supreme Court determining the
criteria to be applied in case of promotion
where rules provide for seniority-cummerit as the test.

10. A Seven Judge Bench of the
Hon'ble Supreme Court, in State of
Kerala & Anr. Vs. N.M. Thomas & Ors.,
AIR 1976 SC 490, observed as under:-

"Seniority cum merit' means that
given the minimum necessary merit
requisite for efficiency of administration,
the senior, though less meritorious, shall
have priority. This will not violate
Articles 14, 16 (1) and 16 (2) of the
Constitution of India."

11. In Sadi Lal Vs. Deputy
Commissioner, Gurgaon & Ors., 1974 (1)
SLR 217; and Govind Ram Purohit &
Anr. Vs. Jagjiwan Chandra & Ors., 1999
SCC (L&S) 788, a similar view has been
reiterated. Thus, it is apparent that the
Apex Court provided for giving seniority
a weightage without compromising with
the merit as the candidate had to possess
the minimum requisite merit.

12. In Sr. Jagathigowda C.N. & Ors.
Vs. Chaiman, Kaweri Gramin Bank &
Ors., AIR 1996 SC 2733, the Apex Court
has observed as under:-
1 All] Rajendra Prasad Yadav V. Chairman Sanyukt Kshetriya Gramin Bank and others
301

"It is settled proposition of law even
while making promotion on the basis of
seniority cum merit, the totality of the
service record of the officer concerned
has to be taken into consideration. The
performance
Appraisal
Forms
are
maintained primarily for the purpose that
the same are taken into consideration
when the person concerned is considered
for promotion to the higher rank."

13. In Union of India Vs. Mohan Lal
Capoor, AIR 1974 SC 87, it was held as
under:

"For inclusion in the list, merit and
suitability in all respects should be the
governing consideration and that seniority
should play only 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 conclusion,
seniority would tilt the scale."

14. In B.V. Sivaiah Vs. Addanki
Babu, AIR 1998 SC 2565, the Hon'ble
Supreme Court held that 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.

15. In Union of India Vs. Lt. Gen
Rajendra Singh Kadyan, AIR 2000 SC
2513, it was observed as under:-

"Wherever fitness is stipulated as the
basis selection it is regarded as a nonselection post to be filled on the basis of
seniority subject to rejection of the unfit.
Fitness means fitness in all respects.
"Seniority-cum-merit"
postulates
the
requirement of certain minimum merit or
satisfying a benchmark previously fixed.
Subject to fulfilling this requirement the
promotion is based on seniority. There is
no
requirement
of
assessment
of
comparative merit both in the case of
Seniority-cum-merit.
Merit-cumsuitability with due regard to seniority as
prescribed in the case of promotion to
All-India Services necessarily involves
assessment of comparative merit of all
eligible candidates, and selecting the best
out of them."

16. The said principle was approved,
reiterated and followed by the Hon'ble
Apex Court in The Central Council for
Research in Ayurveda and Siddha Vs. Dr.
K. Santhakumari, (2001) 5 SCC 60; and
Bibhudatta Mohanty Vs. Union of India
& Ors., (2002) 4 SCC 16.

17. In K. Samantaray Vs. National
Insurance Company Ltd., AIR 2003 SC
4422, the Hon'ble Apex Court explained
the distinction and difference between
principles of merit-cum-seniority and
seniority-cum-merit,
placing
reliance
upon earlier judgments in Sant Ram
(Supra);
Syndicate
Bank
Scheduled
Castes and Scheduled Tribes Employees
Association & Ors. Vs. Union of India &
Ors. JT 1990 (3) SC 468; and held that for
the purpose of promotion, even on
seniority-cum-merit, weightage in terms
of numerical marks for various categories,
the authority is permitted to work out the
marks for individual head otherwise the
word 'merit' would loose its sanctity.

18. A Division Bench of this Court
in Rajendra Kumar Srivastava & Ors. Vs.
Samyut Kshetriya Gramin Bank & Ors.,
2001 Lab.I.C. 4086, considered the
similar provision applicable in a similar
302 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Bank providing for promotion on similar
circular observing as under:-

"No doubt in Sivaiah's case (supra)
more than 50% marks set apart for
interview and performance but in that
case only those who secured highest
marks were ultimately promoted and that
was declared illegal by the Supreme
Court. The present case is distinguishable.
This is not a case were those who got
highest marks in the interview and
appraisal were promoted rather those
persons who got minimum of 78% marks
were considered eligible and from them
promotion was made on the basis of
seniority. It is settled law even where the
selection is done on the basis senioritycum-merit,
a
minimum
eligibility
requirement
can
be
fixed
by
the
authorities."

19. Another Division Bench while
deciding Writ Petition No. 7385 of 1989,
Kamal Prakash Singhal Vs. The Chairman
Aligarh Gramin Bank, Aligarh along with
other petitions, vide judgment and order
dated 07.04.2004, upheld the circular
fixing standing marks for promotion and
dismissed the petition. While deciding the
said case, reliance had been placed upon
the earlier judgment of this Court in
Rajendra Kumar Srivastava (supra); and
Vinod Kumar Verma Vs. Union of India
& Ors., 2004 (1) ESC 19.

20. The Hon'ble Supreme Court in
the latest judgment in the case of Hari
Goving Yadav Vs. Rewa Sidhi Gramin
Bank & Ors.; reported in (2006) 6 SCC
145 (Para 21 and 22) has clearly laid
down that it is open to the employers to
lay down a minimum standard for the
purpose of judging the merit of the
candidate within the eligibility zone and
all those persons who clear the minimum
standard are entitled for promotion in
order of seniority.

21. In view of the aforesaid settled
legal proposition, which has not been
taken note of by the Hon'ble Single Judge
it was open to the employer in the facts of
the case to fix a minimum standard which
a candidate should achieve before he
could be granted promotion having regard
to his seniority. But it was not open to the
employer to make appointments on the
basis of relative merit secured by the
candidates on the basis of the marks fixed
for various disciplines ignoring the
seniority. We are of the opinion that the
judgment and order of the Hon'ble Single
Judge has run contrary to the law laid
down by the Hon'ble Supreme Court, as
noticed herein above.

22. We may also record that if
certain facts are stated in the rejoinder
affidavit for the first time, the same
cannot be ignored by a Court of Law,
inasmuch as the statements so made are
supported by affirmance on oath. These
new facts, however, may not be taken into
consideration
unless
and
until
an
opportunity is afforded to the respondents
in the writ petition to controvert these
new facts stated in the rejoinder affidavit.
Therefore, the Hon'ble Single Judge was
not justified in ignoring the facts, which
were stated in the rejoinder affidavit.

23. Normally we would have
remanded the matter for examination
afresh to the Hon'ble Single Judge,
however, such a course is not being
followed in the present case, inasmuch as
the persons, who had already been
promoted and who had been impleaded as
respondent nos. 4 to 46 are not before us,
1 All] Gobari Yadav and another V. D.I.O.S., Deoria and others
303
directing their impleadment in the writ
petition and notices being issued to them
afresh on restoration of the writ petition to
its original number, which is of the year
1998, would only prolong the dispute for
many more years.

24. In such circumstances, we feel it
appropriate to dispose of the present writ
petition as well as the appeal with liberty
to petitioner to approach the Board of
Directors of the Bank itself at the first
instance in respect of the grievance raised
qua his super session with specific
reference to the reasons recorded herein
above by us qua the criteria to be applied
in the case of seniority-cum-merit.

25. Accordingly, the petitioner is
granted liberty to file his representation
ventilating all his grievances before the
Chairman of the Bank within two weeks
from today alongwith certified copy of
this order as well as Photostat copies of
the judgment in support of his claim. On
such representation being filed, the
Chairman of the Bank shall place the
same before the Board of Directors,
which may, after affording opportunity of
hearing to the parties concerned, take
fresh decision in the matter strictly in
accordance with law by means of a
reasoned
speaking
order,
preferably
within eight weeks thereafter.

26.

With
the
aforesaid
observations/directions the present special
appeal is disposed of finally.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2008

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE RAJES KUMAR, J.

Special Appeal No.690 of 2007

Gobari Yadav & another ...Appellants
Versus
District Inspector of Schools, Deoria and
others

...Respondents

Counsel for the Appellants:
Sri R.C. Singh

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Payment
of
Salary-
petitioner/
Appellants
appointed on the post of peon in
recognized
Inter
Mediate
Collegewithout advertisement without following
the
procedure
for
appointment
in
consonance of provisions Article 14 and
16 of Constitution-Single Judge declined
to interfere-even in appeal inspite of
time granted to produce the documents
relating to their appointment-No reply
given in counter affidavit allegation of
forged
appointment
letter-not
controverted-No relief can be granted.

Held: Para 18 & 19

Therefore,
it
is
evident
that
any
appointment made without advertising
the vacancy cannot be held to be in
conformity with the mandate of Articles
14 and 16 of the Constitution of India
and is a nullity.

Appellants claim their appointments in
the year 1991 when the 1985 rules were
already in force. Even otherwise, if no
statutory
Rules
providing
for
the
procedure of selection exist, selections
have to be based on a fair procedure and