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2000 DIGILAW 230 (KAR)

B. R. DESHPANDE v. CHITRADURGA GRAMINA BANK

2000-03-16

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GURURAJAN, J. ( 1 ) THIS petition is filed by one Deshpande, Manager, Chitradurga gramina Bank challenging the promotion order dated 4. 7. 1995 annexure-M. Petitioner has also challenged Annexure-C in so far as the prescription of marks for leave record, prescription of marks on the basis of fresh self-appraisals and also the negative marking for promotion for reprimand or warrant or caution, in addition to other reliefs. ( 2 ) FACTS: The petitioner is an officer of the Bank. He has challenged the denial of promotion to him on the following facts. He states that the Government of India implemented the award of the tribunal from 1. 11. 1987 in all Regional Rural Banks. The post of field Supervisors, Officer, Managers, Senior Managers etc. all came to be known as officers in Junior Management Grade Scale-1. The post of Area Managers and Senior Managers came to be known as officers in Middle Management Grade-ll. The posts of Middle management Grade-ll are to be filled up 100% by internal promotion from the cadre of officers in Junior Management Grade Scale-1. ( 3 ) IN exercise of power under Section 29 of the Regional Rural Banks Act (hereinafter referred to as 'the Act' for short), the government of India, in consultation with NABARD and the sponsor banks, framed Rules known as Regional Rural Banks (Appointment and Promotion of Officers and Other Employees) Rules, 1988 (for short 'the Rules' ). These Rules provided for recruitment, qualification, mode of appointment etc. In so far as the post of Area Managers/ security Managers is concerned, rules stipulated the source of recruitment as 100% by promotion from amongst the confirmed officers working in the bank. The promotion is on the basis of seniority-cum-merit. A Notification dated 28th September 1988 containing the Rules is filed. On the redesignation of the post pursuant to the NIT award, a question arose before the Regional rural Banks as to the procedure to be followed and eligibility and other criteria to be adopted for promotion from the cadre of officers in junior management Grade Scale-l to Middle Management Grade scale-ll in regional rural banks. NABARD, by a letter dated 17. 9. NABARD, by a letter dated 17. 9. 1994 advised all banks including" the first respondent that revised promotional rules are under consideration and until a decision is taken, the banks are to undertake the promotion from Scale-l to scale-ll by following the same procedure for promotion from officers to Senior/area managers of the bank. It is stated in the said letter that the existing practice for effecting promotion is to be followed (Annexure-B ). Petitioner states that the criteria for promotion is seniority-cum-merit only. There arose some vacancies of Middle management Grade Scale-ll. The bank issued a memo dated ( 4 ) 5. 1995 as per Annexure-C. In the said memo, the bank has proceeded to assign marks under various heads for assessment of merit. It provided 11 marks for service, 4 marks for qualifications, 6 marks for leave, 15 marks for performance assessed under on going annual appraisals for the years 1991-92, 1992-93 and 1993-94. 39 marks were prescribed for performance on the basis of fresh self- appraisal to be submitted for the years 1991-92, 1992-93 and 1993- 94. 25 marks were prescribed for interview. According to the petitioners, this awarding of marks is contrary to statutory rules issued by the Central Government and the guidelines of NABARD. Petitioner states that 39 marks for fresh self-appraisal is unnecessary and capricious. That would result in manipulation to eliminate those whom it did not like. It would result in favouritism. Petitioner states that the petitioner's performance -by the superiors had already been considered and his performance was stated to be very good. The petitioner ought to have been promoted to Middle Management grade - II. The first respondent has promoted either officers as a part of promotion exercise out of whom four are juniors to the petitioner. Petitioner has been denied promotion. Petitioner made an appeal and the said appeal has been rejected. Petitioner states that the reprimands on the petitioner have been relied upon to deny promotion to him. The same is illegal. Petitioner was on leave due to illness and submitted his medical certificate. A show cause notice has been issued to the petitioner and later the petitioner was reprimanded. That has caused denial of promotion. The reprimand imposed on the petitioner was unfair and unjust and therefore, according to the petitioner, these reprimands cannot be taken into consideration for awarding marks. Petitioner was on leave due to illness and submitted his medical certificate. A show cause notice has been issued to the petitioner and later the petitioner was reprimanded. That has caused denial of promotion. The reprimand imposed on the petitioner was unfair and unjust and therefore, according to the petitioner, these reprimands cannot be taken into consideration for awarding marks. It is his case that after taking into consideration the overall performance including reprimand, rating is done. There is no need or reason for negative reprimands marks for the purpose of promotion. In conclusion he states that denial of promotion to him on the basis of Annexure-C is illegal. Hence he seeks for various prayers before this Court. 4. A counter statement has been filed only by the Bank. The bank has justified its stand. It is stated that the petitioner's case was considered in terms of the policy and he could not be selected in terms of the rules. The averment made in the petition are denied by the bank. The bank stated that the awarding of marks is proper and legal. The self-appraisal is necessary to maintain efficiency in the bank. Respondent bank also relies on the Circular dated 1. 12. 1987 in support of its case. ( 5 ) MR. Rajagopal, learned Counsel for the petitioner, while reiterating the grounds urged in the petition, argued at great length to contend that the award of marks of 39 towards performance on the basis of fresh self-appraisals to be submitted for the years 1991- 92, 1992-93 and 1993-94, negative marking on account of punishment already undergone during the appraisal period and six marks for leave are all unsustainable. He submitted that leave has been granted in terms of the rules/regulations as applicable to the facts of this case and it cannot be further taken for the purpose of assessment. He further argues that self-appraisal for officers was already considered and a performance review rating for the years 1990-91 and 1992-93 has been granted by reviewing that order. Having obtained self-appraisal and having reviewed, it is not open to the bank once again to insist on submission of fresh self-appraisal and marks being awarded for the second time without any rational basis and it is nothing but an attempt to eliminate the officers. It is nothing but "an outlay to exclude the dislikes according to him. Having obtained self-appraisal and having reviewed, it is not open to the bank once again to insist on submission of fresh self-appraisal and marks being awarded for the second time without any rational basis and it is nothing but an attempt to eliminate the officers. It is nothing but "an outlay to exclude the dislikes according to him. He also argues that the issue of marks on account of punishment is again unwarranted. He also states that rural banks have to follow the circulars and instructions issued from time to time by NABARD. NABARD has issued guidelines and NABARD has also not chosen to file any counter. On the other hand, NABARD, as per Annexure- b has directed the continuance of the existing practice i. e. Annexure- a. Annexure-A only provided for assessment of performance report for the preceding three years. In the circumstances, according to him, Annexure-C runs counter to Annexures-A and B, He also relies on the judgment of the Hon'ble Supreme Court in 1996 (9) SCC 677 and 1998 (6) SCC 720 . ( 6 ) PER contra, Sri Prasad, learned Counsel appearing for the bank contends that no injustice has been done to the petitioner. According to him, the bank in the best interest of its efficiency, provided these guidelines and marks have been provided as could be seen from Annexure-C. He argued that no fault can be found with the bank in awarding marks. The performance is judged by the marks according to him. He also denied the allegations made against the respondents. He states that on facts petitioner is not entitled for any relief at the hands of this Court. 6. Though NABARD and the Central Government have been served, they have not filed any counter whatsoever. On the other hand, the NABARD has stated in the letter dated 16. 7. 1996 addressed to the petitioner-Bank stating that they are not aware of the rationale behind various rules and the procedure followed for selection. The said letter is produced at the time of argument by the learned Central Government Standing Counsel. The said letter is not disputed. The learned Counsel appearing for Central Government states that the bank has issued these directions. The said letter is produced at the time of argument by the learned Central Government Standing Counsel. The said letter is not disputed. The learned Counsel appearing for Central Government states that the bank has issued these directions. ( 7 ) AFTER hearing the learned Counsel at great length, I have to find out as to whether the contention of the petitioner has to be accepted or not on the facts of this case. ( 8 ) THE facts reveal that the respondent is a Regional Rural Bank constituted under the Act. It has to follow the directions issued from time to time by the NABARD as contended by the petitioner. The same is also not disputed by the respondent-Bank. Annexure-A is the rules framed in exercise of the powers conferred under Section 29 read with Section 17 of the Act. The Rules are known as the regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules. The said rule provide for a second schedule. The second schedule forms part of the rule. The mode of selection for the posts of Area and Senior Manager is mentioned in the schedule as "interview and assessment of performance for the preceding three years period is necessary for promotion", the mode of selection being interview and assessment of performance report for the preceding three years as Senior Manager. NABARD has issued a clarificatory letter with regard to recruitment and promotion policy in the rural banks on 17. 9. 1994. It states that the revised recruitment and promotion rules for the Regional Rural Bank employees are under the consideration of Government of India. Until a decision is taken by the Government, the existing practice followed by the regional rural banks for effecting promotion from the officer post to the post of Area/senior Manager is to be followed. This is not disputed by the bank as well. Therefore, I am of the view that the bank has to work within the four corners of the rules as clarified by the bank. The rule categorically provide only for assessment of performance report. ( 9 ) MR. Rajagopal, learned Counsel for the petitioner, as mentioned earlier, has argued that the award of marks of 6 for leave, 39% of marks on the basis of self-appraisal, negative marking on account of punishment, are unsustainable in law. I find force in this submission. The rule categorically provide only for assessment of performance report. ( 9 ) MR. Rajagopal, learned Counsel for the petitioner, as mentioned earlier, has argued that the award of marks of 6 for leave, 39% of marks on the basis of self-appraisal, negative marking on account of punishment, are unsustainable in law. I find force in this submission. The marks are based on the number of occasions on which leave availed such as E. L. P. L. etc. The leave is being sanctioned in terms of the rules/practice prevailing in the bank. Having sanctioned the leave in accordance with the rules, again awarding marks on the basis of number of occasions, according to me, has no basis and runs counter to rules/clarification of NABARD. There are no acceptable reasons forthcoming as to why the marks are to be allowed in a manner as suggested in Clause 4 (iii) of annexure-C. Being satisfied with the reasons and having sanctioned the leave as per Rules, now it is not open to the bank to prescribe marks on the basis of 'no. of occasions' for the purpose of promotion. Promotion being on the basis of seniority-cum-merit, such marks on 'no. of occasions', according to me, runs counter to the policy. Hence, in. my opinion, the said pattern of awarding of marks for leave is arbitrary according to me. ( 10 ) THE most important argument advanced by Mr. Rajagopal is that the promotion is on the basis of seniority-cum-merit as accepted in law and as accepted by the bank. He invites my attention to the self-appraisal for officers' performance reviewing rating for the years 1991-92, 1992-93 and 1994-95. I have also seen the self-appraisal form for the performance of reviewing rating and the self-appraisal form in terms of Annexure-C. Most of the information in both the formats are same except some change in the heading. Mere nomenclature does not change the character of self-appraisal. The petitioner in the case on hand has submitted a self-appraisal earlier and in the same he has been rated as Very good', 'good', Very good' and 'excellent' by the reviewing authority. Having reviewed and having issued such high rating, now to insist upon the petitioner once again for submitting fresh self-appraisal as per Annexure 'c', according to me, is unnecessary. There is no rational reason behind the second insistence of self-appraisal. Having reviewed and having issued such high rating, now to insist upon the petitioner once again for submitting fresh self-appraisal as per Annexure 'c', according to me, is unnecessary. There is no rational reason behind the second insistence of self-appraisal. The grant of mark of 39, a substantial mark, is also according to me, does not stand to reasons. The officer having been awarded and granted this relief, cannot be asked to submit now fresh self-appraisal in Form 4b by the bank. A procedure to award mark is also prescribed under the Rules. This second insistence of fresh self-appraisal may result in unnecessary favouritism, manipulations and even denial of promotion on certain occasions to a deserving candidate. The bank is a public authority and is a 'state' under Article 12 of the Constitution. It is expected to act in a fair manner. Promotion is given to an employee subject to his complying and fulfilling the required norms as per rules. Even in the objections statement, the bank has not given any cogent and acceptable reasons for this insistence of self-appraisal and for awarding a substantial 39 marks in terms of Annexure-C, The bank has only stated that the Board of Directors are well-versed and experienced and they, after carefully considering the legal implications, in the light of relevant guidelines, evolved the promotion policy. They have not given the reasons which forced them to provide 39 marks again after performance rating, which is ununderstandable to me. In fact, the material facts, as I referred to earlier, would show that NABARD in view of the pendency of the review of recruitment rules, has clarified to the bank to follow only the existing practice. The existing practice is mentioned in Annexure-A, the rules providing the assessment of performance report. There is also self-appraisal report allotted and produced to the bank. Those assessment reports are to be assessed for the purpose of selection to the post of Area manager as I see from the rules. Having assessed once in accordance with rules, the second assessment according to me, in the absence of any cogent reasons, is arbitrary and unsustainable. In fact, the NABARD has not chosen to support the bank by filing a counter. Having assessed once in accordance with rules, the second assessment according to me, in the absence of any cogent reasons, is arbitrary and unsustainable. In fact, the NABARD has not chosen to support the bank by filing a counter. On the other hand, the NABARD has expressed its surprise to the effect that they are not aware of the rationale behind the various weightages and also the procedure followed for selection vide letter dated 14. 7. 1996 (Filed in open Court ). In the circumstances, the contention of the bank that the award of 39 marks stand to reason, cannot be accepted. The said awarding of 39 marks require my interference. ( 11 ) THE third complaint of Mr. Rajagopal, learned Counsel for the petitioner is with regard to negative marking on account of the punishment having undergone during the appraisal period, which according to him, requires my intervention. For having committed an omission or commission in violation of the rule or regulation. An employee is punished by way of warning/caution/reprimand. Again providing negative marking would result in double jeopardy. The negative marking is another way of punishing again for the purpose of promotion. It has no sanction according to me. Having punished an employee and having obtained the performance report, to provide negative marks once again would be unsustainable. Moreover, such awarding of marks may also result in unwanted punishment for the purpose of denial of promotion without reason. ( 12 ) THE Hon'ble Supreme Court, in the case of B. V. SIVAIAH and OTHERS vs K. ADDANKI BABU AND OTHERS', has considered 'promotion' seniority-cum-merit being the criteria for promotion. The format criteria would be in violation of the seniority- cum-merit principle. The Hon'ble Supreme Court in para 14 in the said case has noticed as under:-"the word "selection" has been used in the sense of selecting an officer for promotion on the basis of the criierion of seniority- cum-merit. The requirement that such selection shall be made on the basis of interview and assessment of performance reports for the preceding three years is consistent with the criterion of seniority-cum-merit as explained in the STATE OF KERALA vs n. M. THOMAS ( 1976 SCC 310 ) that "given the necessary merit requisite for efficiency of administration" the senior though the less meritorious shall have priority. The said mode enables an assessment to be made about the minimum necessary merit requisite for efficiency of administration and it cannot be construed as importing assessment of comparative merit of the officers eligible for promotion. "further, this is what has been observed by the Hon'ble Supreme court at page 18 reading as under:-"we thus arrive at the conclusion that the criterion of "seniority- cum-merit" in the manner 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 the 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. "in the case of JAGATHIGOWDA C. N. AND OTHERS vs chairman, CAUVERY GRAMINA BANK AND OTHERS the hon'ble Supreme Court has noticed as under:-"it is settled proportion of law that even while making promotions 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 of being taken into consideration when the person concerned is considered for promotion to the higher rank. " ( 13 ) THESE two judgments make it clear that even though the section lays down meritorious marks being awarded, merit is not the only criteria required to be considered. In the case on hand, on the basis of the self-appraisal, the bank has reviewed and provided ratings as 'good', 'excellent' etc. to the petitioner. That would take care of the merits of a candidate. There is no need for once again seeking submission of self-appraisal of 39 marks for the purpose of consideration of merit. In the case on hand, on the basis of the self-appraisal, the bank has reviewed and provided ratings as 'good', 'excellent' etc. to the petitioner. That would take care of the merits of a candidate. There is no need for once again seeking submission of self-appraisal of 39 marks for the purpose of consideration of merit. In the circumstances, the arguments of the petitioner are to be accepted and the Clause in 4 (iii) leave' and 4 (iv) (b) 'performance on the basis of fresh self-appraisals' to be excluded for the years 1992-93, 1993-94 and 1994-95 and negative marking on account of punishment undergone during appraisal period, are to be declared as bad in law and the denial of promotion of the petitioner on the said basis requires reconsideration by the bank. 15. In the circumstances, the Writ Petition is allowed. The prayer of declaration declaring that Clause 4 (iii) (Leave) and Clause 4 (iv) (b) performance on the basis of fresh self-appraisals to be submitted for the years 1992-93, 1993-94 and 1994-95 and awarding 39 marks, and Clause (5) negative marking on account of the punishment undergone during the appraisal period in Annexure-C as being unsustainable is accepted. A direction is issued to the respondent no. 1 not to enforce Clauses 4 (iii), 4 (iv) (b) and Clause (5) of annexure-C dated 4. 11. 1995 in respect of promotion from Officer, junior Management Grade Scale I to Middle Management Grade scale-ll. Respondent Bank is directed to reconsider the case of the petitioner for promotion in accordance with law excluding Clauses 4 (iii) 4 (iv) (b) and Clauses (5) of Annexure-C. No costs. Three months time is granted for compliance. --- *** --- .