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2005 DIGILAW 123 (ORI)

Dinesh Ch. Roy v. Chairman, Balasore Gramya Bank

2005-02-09

I.M.QUDDUSI, N.PRUSTY

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JUDGMENT I. M. QUDDUSI, J. : This writ petition has been filed by the petitioner for a writ in the nature of mandamus directing the opposite party No.1 to give seniority in the post of Senior Clerk-cum-Cashier form July 1984 and to give promotion according¬ly to the post of Field Supervisor form 28.4.1989 with all conse¬quential benefits. 2. The brief facts of the case are that the petitioner was initially appointed as Junior Clerk-cum-Cashier on 16.1.1982. Thereafter he was confirmed in the said post with effect form 16.1.1983. A departmental enquiry was conducted against the petitioner in the year 1984 and during pendency of the departmen¬tal enquiry, the case of promotion of Junior Clerk-cum-Cashier to the post of Senior Clerk-cum-Cashier was considered by the De¬partmental Promotion Committee. The criterion for such promotion was seniority cum merit, but the case of the petitioner was not considered because of the reason that a departmental enquiry is pending against him. In the year 1987 a policy was laid by the Bank to the effect that in the case where departmental enquiry is pending, the procedure of sealed cover is to be adopted in promo¬tion and thereafter the petitioner was called for interview in the year 1987 for selection to the post of senior Clerk-cum-Cashier in short Sr. C.C. The interview was held on 28.8.1987 and the result of the Departmental Promotion Committee was kept in sealed cover. In the year 1988 the petitioner was exonerated and accordingly the Departmental proceeding against him had come to an end, the sealed cover was opened and he was given notional promotion with effect form 28.9.1987. In the order of promotion it was mentioned that if he accepts his promotion he may sign one copy of the order. The petitioner accepted the same and signed accordingly. Further, the petitioner’s case was considered for further promotion, but as he was kept junior to the persons pro¬moted as Sr. C.C. of the year 1984 he could not be given further promotion. He made representation/appeal, which was rejected by the Chairman opposite party No.1 vide order dated 17.8.1991, which is quoted below : “While we note the basis in your representations, we find that as per the practice thus prevalent in the Bank for promotion to the Higher grade your name was not considered within the purview for promotion in view of the departmental enquiry thus ending against you. Though you were subsequently exonerated on the basis of the enquiry, the question of considering your case was not possible since the entire promotion process was completed by the time the enquiry was over. Therefore, the question of antedating your seniority on the basis of subsequent representa¬tion received only in 1989 is not possible particularly in view of the fact that the earlier promotion was made on the basis of a comparative assessment of merit of the candidates through an interview and seniority etc. We therefore request you to appreciate the position of the circumstances on account of which we are unable to consider your request in antedating your promotion form an earlier date.” It is not disputed that the opposite parties 2 and 3 were junior to him as Junior Clerk. They were considered for promotion in the year 1984. The petitioner’s case was not considered be¬cause of the reason that Departmental proceeding was pending against him. However, he was exonerated later on and his promo¬tion was treated with effect form 1987 instead of form the date when his juniors i.e. opposite parties 2 and 3 were considered for promotion in the year 1984. 3. Learned counsel for the petitioner has cited a decision of this Court in a batch of cases in O.J.C. No.8310 of 1992, O.J.C. No.9776 of 1992, O.J.C. 813 of 1993 and O.J.C. No.1164 of 1993 in which the decision of the 7 Judges Bench of the Hon’ble Apex Court in State of Kerala v. N. M. Thomas: AIR 1976 SC 490 was relied upon. It has been held : “The system of seniority-cum-merit contemplates selecting people for promotion mainly on the basis of seniority and the negative factors against them should alone be taken into account and if there are negative factors which render them unsuitable for the higher post, then only they should be eliminated. For promotion under the system of seniority-cum-merit the process is one of identifying the negative factors against the individual and eliminating the persons found to be unfit. It does not give scope for selection by the process of assessing comparative merit of the candidate called for interview. For promotion under the system of seniority-cum-merit the process is one of identifying the negative factors against the individual and eliminating the persons found to be unfit. It does not give scope for selection by the process of assessing comparative merit of the candidate called for interview. The term unfit is not capable of an easy definition, but it can be safely said to be sum total of various qualities and at¬tributes of an employee, such as his academic qualifications, his character and integrity, devotion to duty and manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his punctuality at work, the quality, and out turn of work done by him and the manner of his dealings with superiors, subordinates and the general public. It is not in doubt that when seniority and merit have a role, they should tamper each other. But the assessment has to be for as¬sessing negative factors suitability without any scope for as¬sessing comparative merits. In the case of State of Kerala and another v. N. M. Thomas (supra) the Hon’ble Apex Court has held : Xxx xxx xxx xxx xxx Under Article 16 there can be reasonable classification of the employees in matters relating to employment or appointment. Article 16 (1) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selec¬tion post is also included in the matters relating to employment and even in regard to such a promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Article 16(1) and (2) give effect to equality before law guaranteed by Art.14 and to the prohibition of discrimination guaranteed by Art.15 (1). Promotion to selection post is covered by Article 16 (1) and (2). The power to make reservation which is conferred on the State under Article 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of Selec¬tion posts. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the backward classes consistently with the maintenance of the efficiency of administration. In providing for reservation of appointments or posts under Article 16(4) the State has to take into consideration the claims of the backward classes consistently with the maintenance of the efficiency of administration. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fell within Article 16(2) and is legitimate for the purposes of Article 16(1). If preference shall be given to a particular under represented community other than a backward class or under represented State in an All India Service such a rule will con¬travene Article 16(2). A similar rule giving preference to an under represented backward community is valid and will not con¬travene Articles 14, 16(1) and 16(2). The classification of employees belonging to Scheduled Castes and Scheduled Tribes for allowing them an extended period of two years for passing the special tests for promotion is a just and reasonable classification having a rational nexus to the object of providing equal opportunity for all citizens in matters relating to employment or appointment to public office. Granting of tempo¬rary exemption form special tests to the personnel belong to scheduled Castes and Scheduled Tribes by executive order has been an integral feature of the service conditions in Kerala form its very inception on 1st November 1956. That was the pattern in Travancore Cochin State. The special treatment accorded to the Scheduled Castes and Scheduled Tribes in Government service, which had become part and parcel of the Conditions of service over these long periods amply, justify the classification of the members of the Scheduled Castes and Scheduled Tribes as a whole by Rule 13 AA and Government orders dated 13.1.1972 and 11.1.1974. Article 335 of the Constitution states that claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration in the making of appointment to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration. Rule 13AA and orders dated 13.1.1972 and 11.1.1974 are related to this constitutional mandate. Only those Lower Division Clerks who were senior in service will get the benefit of the relaxation contemplated by R.13 AA and the two orders. Promotion to Upper Division form Lower Division is governed by the rule of seniority subject only to passing of the qualifying test. Only those Lower Division Clerks who were senior in service will get the benefit of the relaxation contemplated by R.13 AA and the two orders. Promotion to Upper Division form Lower Division is governed by the rule of seniority subject only to passing of the qualifying test. The temporary relaxation of test qualification made in favour of Scheduled Castes and Sched¬uled Tribes is warranted by their inadequate representation in the services and their overall backwardness. Rule 13-AA and the orders are meant to implement not only the direction under Arti¬cle 335 but also the Directive Principle under Article 46. Rule 13-AA does not impair the test of efficiency in administration inasmuch as members of Scheduled Castes and Tribes who are pro¬moted have to acquire the qualification of passing the test. The only relaxation, which is done in, their case is that they are granted two years more time than others to acquire the qualifica¬tion. Form the point of view of time a differential treatment is given to members of Scheduled Castes and Tribes for the purpose of giving them equality consistent with efficiency. Rule 13-AA and the two Orders are therefore, valid. 21. Articles 14, 15 and 16 form part of a string of consti¬tutional guaranteed rights. These rights supplement each other. Article 16, which ensures to all citizens equality of opportunity in matters relating to employment is an incident of guarantee of equality contained in Article 14. Article 16 (1) gives effect to Article 14. Both Articles 14 and 16 (1) permit reasonable classi¬fication having a nexus to the object so to be achieved. Under Article 16 there can be a reasonable classification of the em¬ployees in matters relating to employment or appointment. Xxx xxx xxx xxx 28. This equality of opportunity need not be confused with absolute equality. Articles 16(1) does not prohibit the prescrip¬tion of reasonable rules for selection to any employment or appointment to any office. In regard to employment, like other terms and conditions associated with and incidental to it, the promotion to a selection post is also included in the matters relating to employment and even in regard to such promotion to a selection post all that Article 16(1) guarantees is equality of opportunity to all citizens. Article 16(1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohi¬bition of discrimination guaranteed by Article 15(1). Article 16(1) and (2) gives effect to equality before law guaranteed by Article 14 and to the prohi¬bition of discrimination guaranteed by Article 15(1). Promotion to selection post is covered by Article 16 (1) and (2). Xxx xxx xxx xxxx 37. The rule of equality within Articles 14 and 16 (1) will not be violated by a rule which will ensure equality of represen¬tation in the services for unrepresentative class after satisfy¬ing the basic needs of efficiency of administration. Article 16(2) rules out some basis of classification including race, caste, descent, place of birth etc. Article 16(4) clarifies and explains that classification on the basis of backwardness does not fall within Article 16(2) and is legitimate for the purposes of Article 16(1). If preference shall be given to a particular under-represented community other than a backward class or under-represented State in all All India Service such a rule will contravene Article 16(2). A similar rule giving preference to an under represented backward community is valid and will not con¬travene Articles 14, 16 (1) and 16 (2). Article 16(4) removes any doubt in this respect. 38. The principle of equality is applicable to employment at all stages and in all respects, namely, initial recruitment promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, he senior though the less meritorious shall have priority. This will not violate Articles 14, 16(1) and 16 (2). A rule which provides that given the necessary requisite merit, a member of the backward class shall get priority to ensure adequate representation will not similarly violate Article 14 or Article 16(1) and (2). The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresentative backward community or goes beyond it.” 4. The relevant touchstone of validity is to find out whether the rule of preference secures adequate representation for the unrepresentative backward community or goes beyond it.” 4. In view of the aforesaid facts and circumstances we have no hesitation to hold that after the exoneration of the petitioner form the charges levelled against him he was entitled to be considered for promotion with effect form the date of promotion of his immediate juniors i.e., opposite parties 2 and 3 to the post of Senior Clerk-cum-Cashier and the opp.party No.1 has violated the provisions of Articles 14 and 16 of the Consti¬tution of India in denying the consideration of his promotion with effect form the date of promotion to his juniors. Further, on the basis of his seniority as Senior Clerk-cum-Cashier the petitioner was also entitled to be considered for further promo¬tion to the post of Supervisor where the criterion of promotion is the same as in the case of Senior Clerk-cum-Cashier i.e. seniority cum merit. 5. Therefore, in view of the above discussions, this writ petition is allowed. A writ in the nature of mandamus be issued directing the opp.party No.1 to consider the promotion of the petitioner with effect form the date of promotion of his juniors i.e. opposite parties 2 and 3 in the post of Senior Clerk-cum-Cashier and after taking the decision thereon consider his case further promotion to the post of Field Supervisor on the basis of his seniority to be fixed in the post of Senior Clerk-cum-Cashier. If the petitioner is found fit, he will be given notion¬al promotion to the post of the Senior Clerk-cum-Cashier and the Supervisor respectively with effect form the date his juniors were promoted to those posts with other consequential benefits. The entire exercise shall be completed within a period of two months form the date a copy of this order is served on opposite party No.1 by the petitioner. N. PRUSTY, J. I agree. Petition allowed.