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2002 DIGILAW 1117 (JHR)

Vishwanath Prasad Sinha v. Union of India

2002-10-09

VIKRAMADITYA PRASAD

body2002
Judgment Vikramaditya Prasad, J.-This writ application has been filed by the petitioner for quashing the order dated 29.3.1993 (Annexure 4) with respect to respondent Nos. 7 to 10 because they have been promoted over the head of the petitioner and for a direction to the Management for considering the case of the petitioner to the post of Junior Manager Grade II on and from the date when his juniors have been promoted. 2. According to the petitioner, he was appointed as a clerk on 7.12.1972 and thereafter having served various other places he was promoted to the post of Junior Manager Grade Scale I on 30.12.1980 and worked at various places and ultimately he became a Routine Officer in the same scale in the month of March 1988 and he was continued as such since 1988. There was a circular of the year 1979, according to which, as per the petitioner, he became eligible for being promoted to the grade of Middle Manager Grade II in the year 1987 and this promotion was to be given after completion of 7 years of continuous service as Junior Manager Grade Scale I on the basis of seniority-cum-merit, but the petitioner was never called for interview in the year 1987 or till May 1992. The aforesaid circular was effective with effect from 1.4.1980, so, the first grievance of the petitioner is that he should have been dealt with under that circular and should have been granted promotion on the basis of seniority cum merit. Thereafter on 8.6.1992 he was called for to appear before the Interview Board for his promotion to the post of Middle Manager Grade/Scale II. The petitioner appeared, faced the interview and was waiting for his promotion, but a list for promotion to the post of Middle Management Grade/Scale was published (vide Annexure 2), which contains 352 candidates but his name did not appear in that list and it included only 4 persons from erstwhile Bihar. As per the aforesaid circular the petitioner filed an appeal within the period of limitation of 45 days (vide Annexure-3), but it was not disposed of by the appellate authority. As per the aforesaid circular the petitioner filed an appeal within the period of limitation of 45 days (vide Annexure-3), but it was not disposed of by the appellate authority. During the pendency of the appeal, a panel of 275 officers for promotion to the post of Middle Manager Grade II was again published on 23rd March 1993 (vide Annexure-4) and in that list the name of the petitioner did not appear, though the name of the respondent Nos. 7 to 10 appeared, who were juniors to the petitioner. Thus, again the petitioner felt discriminated because of non-inclusion of his name in the panel while his juniors' names were included in that panel. Again a seniority list the was published on 13.2.1992 and in that seniority list petitioner was at serial No. 2810 whereas the respondent No.7 was at serial No. 3322, respondent No. 8 was at serial No. 2847, respondent No.9 was at serial No. 3205 and respondent No. 10 was at serial No. 4401, which shows that all these respondents i.e. respondent Nos. 7 to 10 were juniors to him, but they have been promoted in pursuance of the empanelment list without considering the case of the petitioner. By a letter dated 12.10.1992 (vide Annexure 5) the petitioner was informed that his appeal dated 16.9.1992 has been received in the office of Managing Director but no action till date and rejection order was also communicated to him till the date of filing of the writ. Thus, the grievance of the petitioner is that empanelment has been made without following the principle laid down for promotion in the aforesaid circular. Besides, a large number of officers, who could have been empanelled were not included in those panels and consequently the Union raised the matter and before the respondents against the panel dated 29.3.1993, which has been prepared arbitrarily, discriminately and against the principle laid down for such promotion. 3. It appears from the perusal of the record of the writ that there was a: policy with regard to the promotion issued in the year 1979. Another new policy has been introduced which came into existence with effect from 18th October, 1991. Against 1991 policy a number of writs have been filed before the different High Courts all over India, consequently the promotion/ empanelment has been made subject to the final outcome of the pending writ petitions. Another new policy has been introduced which came into existence with effect from 18th October, 1991. Against 1991 policy a number of writs have been filed before the different High Courts all over India, consequently the promotion/ empanelment has been made subject to the final outcome of the pending writ petitions. The further case of the petitioner is that as the impugned policy was introduced in the year 1991, therefore, vacancies that had occurred prior to the said policy should have been filled up as per the old policy of 1979 but even in respect of those vacancies the new policy was adopted. With respect to the arbitrary and discriminatory attitude, the petitioner pleaded that though under new policy two years of rural service is required for promotion to the post of Manager Grade II, but one Mr. Mahendra Singh respondent No.10, though he had not completed the two years of rural service had been promoted by the office order dated 29.3.1993. 4. The further case of the petitioner is that no adverse remarks was ever communicated to him or he completed the rural service of two years or even he has not been declared failed in the interview and the empanelment for promotion is not based on the result of the interview as many peoples were included in that panel, though they had not faced interview. Therefore, denial of the promotion to the petitioner on the ground of insufficiency in service record, which was also not commu.1icated to him is bad and arbitrary. It was further alleged by the petitioner that by promotion order dated 27th August, 1993 one Sri A.P. Tiwari has been promoted to the Middle Manager Grade/ Scale-II but still the case of the petitioner has not been considered for promotion. 5. The respondents-Bank appeared and filed counter affidavit. Basically a plea was made by the respondents that all the pleas made by the petitioner is disputed question of fact and, therefore, this Court in exercise of power under Article 226 of the Constitution cannot grant any relief to the petitioner. According to the respondents as per clause 2.13 of the promotion policy effective from 1st April, 1980, the list of employees empanelled for promotion is valid till the same is exhausted. According to the respondents, the petitioner could not be considered at the time of preparing that panel in the 1987, because of restricted vacancies. According to the respondents as per clause 2.13 of the promotion policy effective from 1st April, 1980, the list of employees empanelled for promotion is valid till the same is exhausted. According to the respondents, the petitioner could not be considered at the time of preparing that panel in the 1987, because of restricted vacancies. The policy of 1980 was modified and according to the modified policy only 3 to 4 times the number of vacancies were identified and the officers were to be considered for participation and according to the respondents the officers who were appointed/promoted in Junior Manager Grade/Scale I on or before 21st December, 1978 were only considered for promotion to M.M.G. Scale II and as the petitioner was promoted to J.M.B.. Scale I after 21.12.1978 i.e. on 30.12.1980 he was out side the zone of consideration. Subsequent promotion according to the respondents was guided by the new policy with effect from 9.12.1991 and this new promotion policy was adopted with a view to provide motivation to the promotion system and ensure career of the officers of the Bank and in that policy the merit is the determining factor for promotion which is assessed through test/annual appraisal report. The qualities like potential to shoulder higher responsibilities etc. are assessed at the interview level and in view of the Government guide-line dated 18.7.1990 (Annexure-B) no weightage was to be given to seniority. As per the new policy the promotion to M.M.G./Scale II under the fast track 7 years of satisfactory service in Junior Manager Grade Scale I with two years rural branch service as an officer was necessary. The petitioner had applied for his being considered under the fast track, but he had failed in the written test but still he was eligible for consideration under the normal track. Therefore, he was called for interview in June 1992. For this normal track no written test is required. The petitioner had applied for his being considered under the fast track, but he had failed in the written test but still he was eligible for consideration under the normal track. Therefore, he was called for interview in June 1992. For this normal track no written test is required. Under the old scheme of the year 1980 there was no fast track or normal track for promotion and as per Rule 1991 the petitioner availed both i.e. fast track and normal track, and the petitioner had cleared the Interview stage of the promotion in normal track by securing 16 marks out of 30, but the total marks secured by the petitioner was only 58.40 as against 79 marks scored by last named officer selected for promotion/empanelment and, therefore, the petitioner was not empanelled in the merit list. It is further averred by the respondents that the appeal of the petitioner including the appeals of other aggrieved persons were placed before the committee and the committee after going through the records and suitability, decided for empanelment and the respondent Nos. 7 to 10 are empanelled after the Committee considered all the cases i.e. relevant files, records, performance, appraisal reports etc. Such reports of the petitioner was also considered but the Committee did not find the petitioner suitable for being empanelled for promotion and in the second empanelment 214 persons were considered out of the persons successfully empanelled, 46 were from East Zone, out of which 17 were from Bihar, and the name of the petitioner was not included. It was further averred by the respondents that merely by obtai1ing minimum prescribed mark in the interview does not entitle the petitioner for being empanelled because empanelment is done on the basis of aggregate marks obtained under various parameters. The allegation that various persons were empanelled without being interviewed was denied stating that interview is done at one stage and, therefore, for subsequent empanelment, in the aforesaid circumstance, no fresh interview was done. With regard to promotion of Mr. A.P. Tiwari as alleged by the petitioners is concerned in paragraph 36 it was averred that he has cleared the promotion process and was ranked at 315-A under the normal track. However, no promotion order was issued to him since the disciplinary action against him was pending and his promotion order was kept in the sealed cover. A.P. Tiwari as alleged by the petitioners is concerned in paragraph 36 it was averred that he has cleared the promotion process and was ranked at 315-A under the normal track. However, no promotion order was issued to him since the disciplinary action against him was pending and his promotion order was kept in the sealed cover. After the conclusion of the departmental proceeding his case was considered and promotion letter was issued with effect from 29th January, 1993. Therefore, the prayer of the respondent is to dismiss the writ. 6. To this counter affidavit, the petitioner again filed a rejoinder, in which he alleged that in year 1987-88 his juniors were promoted but he was denied the promotion and the old promotion policy should have been applicable in the case of the petitioner at the time when his juniors were promoted. It was also alleged that the panel of 1987-88 were exhausted in the year 1991 and this averment of the respondent is not correct because in the year 1988 Deputy Manager, Kolhapur for the post of Junior Manager Grade-II was considered and one Shri SK Narkar Kumar MMG II, Madras were promoted to the post of MMG II, vide office Order dated 1.6.1988 who was much more Junior to the petiti0ner. The petitioner gave a list of six persons, namely, Miss Indu Puri, Smt. K.U. Gurjar, Smt. A.S. Shah, Sri P. Thispay, Smt. S.K. Narkar and Sri V. Ravi Kumar who were promoted to the post of MMG II on 1 .12.1987 and 1.6.1988 respectively, though they had not been promoted to Junior Manager Grade I in the year 1980. As SI. Nos. 1 and 2 had joined on promotion as JUMGS I in the year 1981, SI. No. 3, 4 and 5 joined as JMGS I in the year 1983 and SI. No. 5 Joined as JMGS I in the year 1984 and thus it was challenged by the petitioner on the ground that because of non-consideration of the case of the petitioner in the year 1988 no promotion was granted to him rather the juniors were promoted contrary to the records and also contrary to the facts. Consequently, the petitioner is entitled to his promotion with effect from 1987 with all consequences. Consequently, the petitioner is entitled to his promotion with effect from 1987 with all consequences. Annexing the seniority list, Annexure 7 it was also asserted that the respondents have submitted wrongly that in the year 1987-88 only seniors to the petitioner were considered for promotion. It is further averred that according to the old promotion policy the petitioner ought to have been promoted in the year 1987-88 to the post of MMG II and again to the post of MMG III in the year 1992 but due to inaction of the respondent's bank he was not promoted and in absence of communication of any adverse remarks as per Annexure 10 the appraisal of the Board regarding his performance was bad. Similarly situated persons have filed writ before the Andhra Pradesh High Court which was permitted to be withdrawn on the assurance given by the bank and thereafter 17 persons were promoted to the post of MMG II with effect from the respective due date and the petitioner has also challenged the whole written test process because it was asked to be answered in pencil writing which is against the law. 7. It appears from the supplementary counter affidavit filed by the Bank on 5.9.2002 in the Court itself stating therein that the petitioner has been promoted to the post of Manager Grade II on 1.3.1998. The petitioner is not satisfied with this promotion, in view of his claim that he should have been given promotion with retrospective date when his juniors were promoted to that post. 8. The first question is whether Management was justified in denying the promotion to the petitioner in 1987 as per the Old Promotional Rules, which was effective from 1981. The Promotion Policy of 1979 Rules was modified vide Annexure-A on June 18th, 1385. This amendment became effective from 13th March, 1985. From Clause 2.2(g) it is clear that the number of officers to be considered or participation in the promotion process for promotion from one grade/scale to higher grade/scale shall be restricted to 3 to 4 times the number of vacancies identified/contemplated for which promotion is being considered. This amendment became effective from 13th March, 1985. From Clause 2.2(g) it is clear that the number of officers to be considered or participation in the promotion process for promotion from one grade/scale to higher grade/scale shall be restricted to 3 to 4 times the number of vacancies identified/contemplated for which promotion is being considered. It also provides that if any officer in and upto Middle Management Trade/Scale III who feels that his case of promotion has not been properly dealt with they will have right to appeal before the Managing Director who shall constitute a committee to examine it and the decision of the Managing Director shall be final. The petitioner was promoted to JMG-S-I on 30.12.1980, then according to the promotion policy the petitioner was to complete 7 years in that category for his next promotion. The empanelment was made in the year 1987 and at that time for promotion to MMG-S-II only officers were considered, who were promoted to JMG-S-I on or before 21.12.1978. 9. From the averments made in the rejoinder to the counter affidavit as stated in paragraph 6 of this judgment, it is found that the petitioner has given the name of a number of persons who have been promoted to MMG-S-II, who were promoted to JMG-S-I much after promotion of the petitioner. Therefore, admittedly they were junior to him in the cadre of JMG-S-1. Respondents did not choose to file counter reply to this rejoinder. Thus, the fact that many persons, who were promoted to JMGS-I after the promotion of the petitioner, were considered for promotion to MMG-SII as per Old Policy 1979, but the petitioner was not considered. 10. In absence of this specific counter reply by the respondents, the averments made by the petitioner in the rejoinder that many juniors of the petitioner were promoted ignoring his case has been, allowed to remain un-refuted, by the respondents, and so it is held that the discrimination is apparent in absence of any cause given by the respondents for not considering the case of the petitioner. 11. This question is relevant because if any discrimination was made then that discrimination has to be removed. 11. This question is relevant because if any discrimination was made then that discrimination has to be removed. Rule 4.59(a) of Annexure-A reads as follows: "4.5(a) Appeal against promotion.- Any officer in and upto Middle Management Grade/Scale III, who feels that his case for promotion to the next higher grade/scale has not been properly dealt with will have a right to appeal directly to the Managing Director within 3 months from the date of empanelment of officers for promotion to higher grade/scale. The officer while submitting his appeal shall do so in quadruplicate. The Managing Director shall constitute a committee consisting of officers not below the rank Scale IV to process the appeal and commit to him their recommendations. The recommendations of the Committee shall be placed before the Managing Director within six months from the date of submission of appeals. The decision of the Managing Director in respect of the appeals shall be taken as final. The empanelment of officers through appeals notwithstanding what has been stated in Para 2.9, will be at the bottom assigned to them by the Managing Director." 12. The petitioner filed an appeal but that too has not been disposed of. 13. Consequently, in the aforesaid circumstances it has to be held that the petitioner was discriminated in the year 1987 by the management when his juniors were empanelled considered and promoted. If the petitioner ;lad completed 7 years of service and he was eligible for being considered and he has become entitled to be included in the zone of consideration then in that circumstance non-inclusion of his name in the panel is bad on account of discrimination and arbitrariness. 14. In the next panel which was prepared in the year 1992 after exhaustion of the first panel, the new policy came and in that policy as per the respondents, the petitioner was not found fit under the fast track promotion scheme and he also did not complete the criteria of normal track promotion. If the petitioner did not qualify the criteria and did not obtain the mark as prescribed for normal track course of promotion or fast track course of promotion, on this score he cannot take any advantage. 15. If the petitioner did not qualify the criteria and did not obtain the mark as prescribed for normal track course of promotion or fast track course of promotion, on this score he cannot take any advantage. 15. The instant writ was filed in the year 1993 for redressal of his grievance that had visited him in the year 1987 when the first empanelment was done and the second empanelment was done in the year 1992 then the petitioner did not delay in filing the writ, but by this time when I am disposing of this writ, about 15 years have elapsed, since the first empanelment of the year 1987 and 12 years from the second empanelment. The question now is whether in this circumstance, the respondents can be directed to consider the case of the petitioner on the ground that he was discriminated in the year 1987. The argument that was raised by the learned counsel for the respondents is that the matter has become stale. Since the writ was filed as back as in the year 1993, even in the second empanelment the petitioner was not considered, so it cannot be said that the matter has become stale, but even at this stage if the respondents are directed to reconsider the case of the petitioner as it stood in the year 1987, then it will amount to unsettle many promotions, which had already been given in the year 1987 and that resists me from giving this relief to the petitioner that he would be considered afresh for his promotion from the date when his juniors were promoted. But as the petitioner was within the zone of consideration in the year 1987 because of his not being included in panel he lost a chance of promotion. 16. In the entire circumstances, the writ is dismissed and the respondents are directed to pay a sum of Rs.15,000/- (Rs. Fifteen thousand) to the petitioner as compensation for discriminating him.