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1985 DIGILAW 348 (KER)

LEELAVATHI v. CHIEF REGIONAL MANAGER

1985-11-07

M.P.MENON

body1985
Judgment :- 1. It is not suggested that any notification under S.14(2) of the Administrative Tribunals Act, 1985 (Central Act 13/85) has so far been issued, and the admissibility of this writ petition has therefore to be considered on merits. 2. The petitioner is a clerk in the State Bank of India and claims to be sufficiently senior to be considered for appointment as an officer in the Junior Management Scale Grade I (hereinafter called 'JMO') in the Kerala Regional Offices of the Bank. Under rules governing the matter, such appointments are to be made by promotion from among the seniormost clerical staff by selection on the basis of tests periodically conducted. During the last test, only clerks who had commenced service prior to June, 1974 were promoted, and the next test was due to be held in April, 1985. The petitioner was expecting to participate in that test and to compete for promotion; but in the meanwhile, the Bank of Cochin Ltd. was amalgamated with the State Bank of India in accordance with a scheme prepared by the Reserve Bank and sanctioned by the Central Government under the provisions of S. 45 of the Banking Regulation Act, 1949. The scheme provided for absorption of employees of the Bank of Cochin into the services of the State Bank of India, except those named in a Schedule appended to it. Those not included in the Schedule were to continue in service and were to be "deemed to have been appointed by the transferee Bank" at the same remuneration and on the same terms and conditions as were applicable to them earlier. The transferee bank was also obliged, under paragraph (12) of the scheme, to make available to such absorbed employees, within three years, the same remuneration and the same terms and conditions of service as are applicable to employees of corresponding rank or status of the transferee bank, subject to equality of qualifications and experience. 3. Now, the complaint in the writ petition is this. In pursuance of the aforesaid scheme, the State Bank of India has absorbed into its services certain "officers" (as distinct from other employees governed by the Industrial Disputes Act) of the former Bank of Cochin, and has started posting them as JMOs. in some of its branches, with the result that the petitioner and others are deprived of their legitimate chances of promotion. in some of its branches, with the result that the petitioner and others are deprived of their legitimate chances of promotion. It is alleged that the Cochin Bank employees had become officers not on considerations of seniority or merit, but on other considerations, and that it was not unusual for a Cochin Bank clerk to become an officer after two to three years of service, while in the State Bank, such elevations would never have taken place even within a decade. Persons like the petitioner had an exclusive right to be considered for promotions to such of the vacancies in the JMO cadre as had arisen before August, 1985 (i.e. before the date of amalgamation) and it is claimed that such rights could not be defeated by the arbitrary method of bringing in subsequent transferees. Fundamental rights under Art.14 and 16 are threatened. It is contended that till equality of rank and status is established within the meaning of and the time prescribed in paragraph (12) of the scheme, there could be no question of an absorbed officer of the Bank of Cochin being equated with an officer of the State Bank in the JMO cadre. The absorption could not be treated as complete until the expiry of the 3-year period; till then the absorbed employees have to be treated as a separate group and kept as such. There are enough vacancies in the cadre of JMO to absorb persons like the petitioner also, and if all the vacancies are allotted to the new-comers, that would result in denial of equality of opportunity. 4. Ext.P1 is a memo dated 17-9-85 posting one K.J. Sebastian, a former officer of the Bank of Cochin, to the Ernakulam M.G.Road Branch of the State Bank. As the attack founded on deprivation, discrimination etc. is all based on communications of the above type, I shall extract Ext.P1 in full: STATE BANK OF INDIA REGIONAL MANAGERS' OFFICE ERNAKULAM, COCHIN...31. No.RM 11/77 17-9-85. The Branch Manager, State Bank of India, M.G.Road Branch, Ernakulam. Dear Sir, Staff: Supervising Sri. K.J. Sebastian (from BOC Udumbannur) It has been decided to post the abovenamed official of the erstwhile Bank of Cochin Ltd to your Branch permanently. His services may be utilised by you as an ordinary officer with the JMG Officers' powers. 2. No.RM 11/77 17-9-85. The Branch Manager, State Bank of India, M.G.Road Branch, Ernakulam. Dear Sir, Staff: Supervising Sri. K.J. Sebastian (from BOC Udumbannur) It has been decided to post the abovenamed official of the erstwhile Bank of Cochin Ltd to your Branch permanently. His services may be utilised by you as an ordinary officer with the JMG Officers' powers. 2. As the official now being posted to your branch is new to our systems and procedures, the performance of the official has to be monitored on day-to-day basis and afford him necessary guidance and support as is felt necessary, to enable him to pick up the Bank's systems and procedures. 3. Please note that the official should not be entrusted with/to act in any higher capacity i.e. Field Officer/Accountant/Manager of Division/ Branch Manager etc. till further instructions from us and ensure that he is not related to any official/ employee at your branch. 4. Please advise your controlling authority when the official reports to you for, duty. Sd/ Regional Manager." And the prayers in the Writ Petition are: (i) Mandamus not to post any former officer of the Bank of Cochin as JMO of the State Bank of India, Kerala Region; and (ii) direction to the State Bank [to take steps for selecting its clerks as JMOs in the Kerala Region and to appoint such persons as expeditiously as possible. 5. There is no challenge to the scheme notified under S.45 of the Act. Its author, the Reserve Bank of India, and the authority which sanctioned it (and thereby made it operative and binding), namely, the Central Government, are not even parties. As far as I could see, all the ills of the petitioner are to be traced to the scheme and the elaborate provisions of S.45 of the Act which empower its framing and sanctioning; and so long as there is no attack against both I am not for a moment suggesting that they are capable of being successfully attacked little could be done by this Court to redress the grievances of the petitioner. 6. 6. The amalgamation scheme is prepared by the Reserve Bank of India in exercise of its power under S.45(4) when it is satisfied that it is necessary to do so in the public interest, or in the interests of the depositors, or in order to secure the proper management of the banking company or in the interests of the banking system as a whole. Under Sub-sec. (5), the scheme could contain provisions for absorption of employees of the transferor bank in to the services of the transferee bank on existing terms and conditions and bringing about parity of service conditions within three years. When sanctioned by the Central Government, the scheme becomes binding on the transferee bank and all its employees, by virtue of sub-sec (8). And in particular sub-sec. (14) provides that "the provisions of this Section and of any Scheme made under it shall have effect notwithstanding anything to the contrary contained in any other provisions of this Act or in any other law or any agreement, award or other instrument for the time being in force". Assuming therefore that persons like the petitioner herein had "rights" for promotion to the JMO cadre of the State Bank before the amalgamation, the overriding effect given to the provisions of the scheme by Sub-sec. (14) noticed above must be potent enough to deprive them of those rights. 7. Though there is an allegation that clerks of the Cochin Bank were being promoted as officers after two or three years' service and on extraneous considerations, nothing specific is mentioned in the writ petition about Sri. K.J.Sebastian whose posting as a JMO as per Ext.P1 is the basis of the petitioner's complaint. It is not suggested that Sri. Sebastian has not the requisite qualification, experience etc. for being "utilised" as an officer in the JMO cadre. No particulars are given for a comparative study, even assuming that such a function could be taken over by this Court in the present proceedings, for any purpose relevant to the grounds raised. 8. The scheme itself is not produced, but there is no case that its provisions are outside the contours of S.45. No particulars are given for a comparative study, even assuming that such a function could be taken over by this Court in the present proceedings, for any purpose relevant to the grounds raised. 8. The scheme itself is not produced, but there is no case that its provisions are outside the contours of S.45. Paragraph (6) of the Original Petition gives some extracts from the scheme, in so far as it relates to the transfer of Cochin Bank employees to the services of the State Bank, and these provisions are admittedly in conformity with sub-sections (5) and (14) of S.45. The transfer of an employee of the Cochin Bank as an employee of the State Bank is thus part of the statutory scheme; and once such transfer is effected ("deemed to have been appointed by the transferee bank") it will no longer be possible to treat him as an outsider or belonging to a different group for any purpose other than those sanctioned by the scheme. If Sri. Sebastian named in Ext. P1 has become an officer of the State Bank by reason of the scheme, he can and must be permitted to work in any branch or Regional Office of the transferee bank as as officer. The provision for ensuring parity of remuneration and other service conditions within the three year period specified in the Act and the scheme is not intended to convert the absorbed employee into an inferior class of bank employee: the outer-limit of 3 years is placed to give time to the transferee bank, among other things, to watch the performances of the transferees and assess their merit for the purposes of ensuring parity. Parity is to be ensured only in matters relating to remuneration and terms and conditions of service, and that is to be done on the basis that the absorbed employee first equated to an employee of the corresponding rank or status of the transferee bank. Apart from the language of proviso (ii) to S.45(5) (i), this position is expressly clarified by the 'Explanation' added to the Section by the amendment effected by Act I of 1984. There is therefore no basis for the assumption that, in rank, status, qualification, equipment etc. any officer of the Bank of Cochin is inferior to a clerk of the State Bank awaiting promotion to the JMO cadre. There is therefore no basis for the assumption that, in rank, status, qualification, equipment etc. any officer of the Bank of Cochin is inferior to a clerk of the State Bank awaiting promotion to the JMO cadre. Nor is it possible to assume that while preparing the scheme, sanctioning it and giving effect to it, the three authorities concerned i. e. the Reserve Bank, the Central Government and the State Bank, had no bona fide assessment at all about the suitability of each and every transferred employee for absorption. 9. The argument that the failure of the State Bank to ear-mark all the pre-existing vacancies exclusively for promotion of its own senior clerks amounts to violation of Art.14 and 16 of the Constitution, also cannot succeed. Once the erstwhile employees of the Bank of Cochin become employees of the State Bank, there is an integrated group of employees in one banking institution (subject of course to differences in remuneration etc. for a maximum period of three years), and to treat the erstwhile Bank of Cochin people functionally as a separate class, with reference to their origin or birthmark. will itself be violative of Art.14 and 16, as has been held in many cases. 10. The petitioner has not furnished facts and figures about the vacancies that are involved, the number of transferred officers who are to be accommodated, and the number of JMO people required to man such posts in the branches and offices of the Bank of Cochin which have now become branches and offices of the State Bank. There is no reason at all to assume that the Reserve Bank has prepared and obtained sanction from the Central Government for a scheme calculated to induct a large number of inefficient and incompetent people who belonged to the officer cadre of the Bank of Cochin, into the services of the State Bank of India. How could any amalgamation be effected, in letter and spirit, if the former branches of the Bank of Cochin and those who were manning it are to be kept separate? Can the red carpet be suddenly spread for them at the end of the three year period, if separatism is the policy to be followed till then? 11. In the light of the above discussion, there could be no question of granting the first prayer made by the petitioner. Can the red carpet be suddenly spread for them at the end of the three year period, if separatism is the policy to be followed till then? 11. In the light of the above discussion, there could be no question of granting the first prayer made by the petitioner. As for the second, it seems to be incidental to the other; even otherwise, the approach to this Court seems to be premature, because on the facts and circumstances disclosed, the State Bank would require some time to assess the impact of the amalgamation scheme and the number of vacancies which would be available for being filled up by promotion. The O. P. is accordingly dismissed.