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2004 DIGILAW 207 (HP)

BIMLA MALHOTRA v. HIMACHAL GRAMIN BANK

2004-09-02

LOKESHWAR SINGH PANTA

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JUDGEMENT Lokeshwar Singh Panta, J: Petitioners Smt. Bimla Malhotra, N.L. Sharma, Ravinder Prasad Bhardwaj and Surender Kumar Dhiman have filed this writ petitions under; Article 226/227 of the Constitution of India to seeking the following reliefs:- (i) That the respondent may very kindly be restrained from filling up the 15 posts of Scale -II Officers which have fallen vacant as on 31st March, 1998 in accordance with Amended Rules of 1998 and the said posts may kindly be ordered to be filled up as per Original/Un-amended, Regional Rural Banks (Appointment & Promotion of officers and other Officers) Rules, 1988. (ii) That the entire record of the case may kindly be ordered to be summoned from the respondent for the kind perusal of this Honble Court. (iii) That any other order which this Honble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents." 2. It is the case of the petitioners that they are working as Managers (Scale-I Officers) in different branches of the respondent-Bank in the State of Himachal Pradesh. They are successfully discharging their duties to the best of their ability and to the entire satisfaction of their superiors. The petitioners are fully eligible and qualified persons to be promoted to the posts of Area Managers/Senior Managers (Scale-II Officers) in terms of Regional Rural Banks (Appointments & Promotion of Officers and other employees) Rules, 1988 (for short Rules 1988). The criteria for promotion to the post of Area Manager/Senior Managers (Scale-I I Officers) is on the basis of seniority-cum-merit. According to the petitioners there were 15 vacancies of Area/Senior Managers (Scale-II Officers) in the respondent Bank on 31.3.1998. Respondent-Bank had promoted officers upto serial Nos. 16 figured in the seniority list marked Annexure P-1, but the petitioners who are next in the seniority list were not promoted to the higher posts in terms of Rules 1988. The Govt. of India, Ministry of Finance, Department of Economy Affairs (Banking Division) framed the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 (for short Amended Rules 1998) in exercise of the powers conferred by Section 29 of the Regional Rural Banks Act, 1976 (21 of 1976) read with Section 17 thereof and in suppression of Rules 1988. A copy of the Amended Rules is placed on record as Annexure :P-4. A copy of the Amended Rules is placed on record as Annexure :P-4. The Board of Directors of the respondent-Bank in its meeting held on 24.10.1999 have adopted Amended Rules 1998 to form part of Model Staff Service Regulations of the respondent-Bank as per decision conveyed to all the Branches in Himachal Pradesh vide communication dated 15.11.1999 (Annexure :P-5). The grievance of the petitioners is that 15 vacancies of scale-ll officers lying vacant on 31.3.1998 ought to have been filled up by respondent-Bank, according to Rules 1988 and the action of the respondent-Bank applying Amended Rules 1998 for filling up those vacant posts is arbitrary, un-just discriminatory. 3. Reply to the writ petition has been filed by Shri B.L. Kapila, Chairman of respondent-Bank in which preliminary objection raised was that the writ petition is liable to be rejected on the sole ground that the petitioners are guilty of suppressing material facts from the court. The stand of the respondent-Bank is that all the petitioners along with other eligible employees appeared in the written test for the posts of Senior Managers/Area Managers/MMG-II on 27.2.2000 pursuant to the decision of the Board of Directors taken in their meeting held on 23.12.1999 (Annexure:R-1) and in accordance with Amended Rules 1998, but they could not successfully pass the written test. The Board of Directors decided and approved on 23.12.1999 that is posts which had fallen vacant in the year 1998 shall be filled up in accordance with Amended Rules 1999 which were adopted by respondent-Bank on 21st October, 1999, The respondent-Bank submitted that as the petitioners have not disclosed in the writ petition that they had appeared in the written test held on 27.2,2000 along with other eligible persons, therefore, the writ petition deserve to be dismissed on the ground that the petitioners are guilty cf suppresso veri falsus uno. No rejoinder to the reply of respondent-Bank has been filed by the petitioners. 4.1 have heard the learned counsel for the parties. 5. No rejoinder to the reply of respondent-Bank has been filed by the petitioners. 4.1 have heard the learned counsel for the parties. 5. Mr, Bhuvenesh Sharma, Advocate, learned counsel appearing on behalf of the petitioner contended that Amended Rules 1998 could not have been made applicable by the respondent-Bank retrospectively for filling up the posts of Scale-II Officers which were lying vacant in the year 1998 and those 15 posts should have been filled up under the un-amended Rules 1988 under which the petitioners were fully eligible to be promoted on the basis of seniority-cum-merit. 6. Per contra, Mr. Ramakant Sharma, learned counsel for the respondent-Bank contended that the Amended Rules 1998 were framed by the Govt. of India in exercise of the powers conferred under the Regional Rural Banks Act, 1976 and those Rules are made applicable to all the Regional Rural Banks in the Union of India. According to the learned counsel the Board of Directors of respondent-Bank adopted the Amended Rules 1998 and made them applicable as Model staff Regulation Service for appointments and promotions of officers and other employees of the respondent-Bank and the petitioners have not challenged the decision of the Board of Directors, they cannot be permitted to make a complaint at this stage that the Amended Rules 1998 have been wrongly applied by the respondent-Bank for filling up those posts which were lying vacant in the year 1998. 7. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties. It is not in dispute that till the Amended Rules 1998 were made applicable for filling up the posts of Senior Managers/Area Managers (Scale-II Officers) in the Bank, un-amended Rules, 1988 were in vogue whereunder the promotions to the said posts in the respondent-Bank were to be filled up on the basis of seniority-cum-merit. The names of the petitioners appeared in the seniority list drawn on 1.1.1990-marked Annexure: p-l at serial Nos. 19 20, 23 and 24 respectively. The respondent-Bank has not denied that 15 posts of Area/Senior Managers were lying vacant in respondent-Bank in its various branches in the State in the year 1998 but those posts could not have been filled up as the Board of Directors of respondent-Board of Directors of respondent-Bank had not approved filling up of those fifteen posts in the year 1998. The Govt. The Govt. of India, Ministry of Finance Department of Economic Affairs (Banking) Division, issued notification dated 29th July, 1998 (Annexure:P-4) (Annexure: P-4) in exercise of the powers conferred by Section 29 of the Regional Rural Bank Act, 1976 read with Section 17 thereof and in suppression of the Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1988. The Amended Rules 1998 were framed by the Central Govt. in consultation with the National Bank and the Sponsor Banks. The Board of Directors of the respondent-Bank in its meeting held on 23.12.1999 marked Annexure:R-1 decided that 15 vacancies from Scale-I to Scale-II relating to the year 1998 be filled up as per the new promotion policy. It was further resolved that filling up of 32 vacancies (15 vacancies relating to the year 1998 and 17 vacancies relating to the year 1999) shall be filled up by written test as per the new promotion policy. The new promotion policy was adopted by the Board of Directors in its meeting on 21.10.1999, a copy whereof is placed on record as Annexure: R-2. In its meeting dated 21.10.1999 the Board of Directors decided that the exact number of vacancies for the year 1999 be got approved from the Board after it has been cleared by the Sponsor Bank. The decisions were taken by the Board of Directors to fill up 15 vacancies relating to the year 1998 under the new promotion policy after the Amended Rules were adopted by the Board of Directors in its meeting on 24.10.1999 as contained in Annexure: R-3 and the Amended Rules were directed to form part of Model Staff Service Regulations of the Bank. The Board of Directors of the respondent-Bank comprises the Chairman, two Directors from the Punjab National Bank, Sponsor Bank, one Director from the Reserve Bank of India, One form the NABARD and two nominees of the State of Himachal Pradesh. The Board of Directors approved the filling up of 15 vacancies relating to the year 1998 after the approval of the Amended Rules, 1998 and framing the new promotion policy for promotion of officers from Scale-1 to scale-11 The decision of the Board of Directors has attained finality. The Board of Directors approved the filling up of 15 vacancies relating to the year 1998 after the approval of the Amended Rules, 1998 and framing the new promotion policy for promotion of officers from Scale-1 to scale-11 The decision of the Board of Directors has attained finality. If the petitioners are really of the opinion that the policy itself was against the provisions of law or unconstitutional they should have challenged it soon after the policy was announced, but instead they took part in the selection process and having failed therein come forward with this writ petition. 8. In Om Parkash Shukla vs. Akhilesh Kumar Shukla and others AIR 1986 SC 1043, their Lordships of the Supreme Court said that the petition having appeared for examination without protest and filed petition only after realization that he would not succeed in the examination should not have been granted any relief in the petition In Madan Lal and others Vs. State of J. and K. and others (1995) 3 SCC 486, the apex Court stated the law as follow: "9. Before dealing with this contention we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondent concerned. Thus the petitioners took a change to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filled this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla vs. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioners appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. 9. Again in University of Cochin vs. N.S. Kanjoonjamma and others etc. (1997 (2) SLR 606, the Supreme Court pointed that the first respondent also had applied for and sought selection but remained unsuccessful. Hence, the court held that having participated in the selection, she was estopped to challenge the I correctness of the procedure adopted by the Selection Committee. 10. The ratio of the decision of the learned Judges of the Division Bench of the High Court of Judicature at Allahabad in Civil Writ No. 1279/99 decided on 21.4.1999 relied upon by the learned counsel for the petitioners is of no help and assistance to the petitioners in the facts and circumstances of the present case. 11. In the case in hand, the selection for the posts of Senior Manager/Area Manager/MMG-ll had already been over in February, 2000 and the candidates were selected and appointed to the posts. In the circumstances, I have no hesitation to hold that the petitioners herein are estopped from challenging the procedure adopted by the respondent-Bank for the purpose of granting promotion. 12.Hence, the writ petition is dismissed -