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2005 DIGILAW 714 (GAU)

Top Bahadur Chhetri v. Union of India

2005-09-22

AMITAVA ROY

body2005
JUDGMENT Amitava Roy, J. 1. The Petitioners, security guards with the State Bank of India (hereinafter referred to as the Bank) are before this Court being aggrieved by the impending termination of their services. This Court while issuing notice of motion stayed their ouster. Consequently they continue in service as on date. 2. I have heard Mr. S.R. Sen, learned Counsel for the Petitioner in W.P.(C) 73 (SH)/2003 and Mr. S. Chakraborty, learned Counsel for the Petitioners in W.P.(C) 238 (SH)/2003. Mrs. T. Yangi, learned Counsel for the Bank is also heard. 3. The pleaded case of the Petitioners needs to be noticed at the outset. The Petitioner in W.P.(C) 73 (SH)/2003, Shri. Top Bahadur Chetri was initially appointed as Trade G.D. (Sepoy) with the Assam Rifles in the year 1971. He rose in its ranks and became the Havildar in the year 1981. Having applied for voluntary retirement in the year 1993, he was discharged therefrom and thereafter registered himself with the Employment Exchange, Shillong. In the month of February, 1995, he having approached the Zonal Office of the Bank in connection with appointment as a Bank Guard, he was asked to produce his Employment Exchange Card and other testimonials, which he accordingly did. On 20/10/1995 , according to him, an appointment letter was issued appointing him as 'Badli Guard' at the Jowai Branch of the Bank. He accordingly reported for his duties on 28.10.1995 and continued as such. According to him, he was extended the benefits of a regular employee of the Bank and was assured that his services would be soon regularized. He was also sent for training at Banks Training School, Shillong, in the year 1998. While the matter rested at that and the Petitioner was in bonafide expectation that his services would be regularized, by the impugned letter dated 6/3/2003 issued by the Branch Manager of the Jowai Branch of the Bank he was informed that his services were sought to be terminated with effect from 6.4.2003 on the ground that he was over aged, under qualified and that he was not an Ex-serviceman. 4. The Petitioner No. 1 in W.P.(C) 238 (SH)/2003, Shri. Yam Bahadur Gurung admittedly an Ex-service holder of Assam Rifles joined the Bank as its Guard w.e.f. 1.11.1992. 4. The Petitioner No. 1 in W.P.(C) 238 (SH)/2003, Shri. Yam Bahadur Gurung admittedly an Ex-service holder of Assam Rifles joined the Bank as its Guard w.e.f. 1.11.1992. The Petitioner No. 2, Shri. Gopal Bahadur Thapa, who had earlier been in the services of the 58 Gorkha Rifles having been discharged therefrom on 30.9.1991 also joined the services of the Bank in the same capacity on 1.6.1994. According to them, however, no formal letter of appointment was issued. They have claimed that having joined the services as above, they continued without any break. They maintained that the Bank authorities by communications dated 6.11.2000 and 9.11.2000 conveyed their decision to absorb them as Bank Guard, if found suitable in conformity with the terms and conditions of the Bank. Being required to appear in interview, they did so. They having learnt that there was a move to terminate their services in a manner identical to that of the Petitioner in W.P.(C) 73 (SH)/2003, they approached this Court. 5. The Petitioners claim that their initial recruitment have been on as assessment of their suitability in terms of the then existing guidelines of the Bank and, therefore, the proposed termination of their services on the grounds mentioned was illegal, arbitrary and violative of their fundamental rights under the Constitution. 6. The Bank in its affidavit while refuting the Petitioners' claim of suitability has contended that they were appointed/engaged purely on temporary basis as Badli Guards in its immediate administrative exigencies and that their induction in service was not indicative of any assessment of their suitability on the basis of the extant guidelines of the Bank in force. According to the answering Respondent, in the interview held on 16.11.2000, the eligibility/suitability of the Petitioners' was duly assessed and it was ascertained that none of them was eligible in terms of the Bank's guidelines to be continued in its service. According to the Bank, the Petitioner in W.P.(C) 73 (SH)/2003 and the Petitioner No. 1 in W.P.(C) 238(SH)2003 were not Ex-serviceman in terms of the notification No. 36034/5/AT5-ESTT(SCT), Ministry of Personnel, PG and Pensions, Govt. of India, New Delhi, dated 27/10/1986 and that the Petitioner No. 2 in W.P.(C) 238(SH)/2003 was academically deficient. According to the Bank, the Petitioner in W.P.(C) 73 (SH)/2003 and the Petitioner No. 1 in W.P.(C) 238(SH)2003 were not Ex-serviceman in terms of the notification No. 36034/5/AT5-ESTT(SCT), Ministry of Personnel, PG and Pensions, Govt. of India, New Delhi, dated 27/10/1986 and that the Petitioner No. 2 in W.P.(C) 238(SH)/2003 was academically deficient. The Bank, therefore, maintained that the Petitioners being not eligible to continue in its services, the decision to terminate them was legal and valid and that the same by any means could not be said to be violative of their fundamental or legal rights. 7. Mr. Sen has argued that the Petitioners having been inducted in the Bank's services on an evaluation of their credentials and suitability and they having served the Bank without any lapse for all these years, the decision to terminate the services on the purported ground that they were not Ex-serviceman within the meaning of the aforementioned notification or academically wanting, is on the face of the records, illegal and arbitrary and void and is, therefore, liable to be adjudged as such. According to Mr. Sen, the prescription of "Ex-serviceman" is a recent incorporation in the conditions of eligibility now sought to be enforced by the Bank and by any means cannot be made applicable to the Petitioners, who had been recruited at an earlier point of time. They having been found suitable on the basis of the conditions of eligibility in force at the relevant time, no departure therefrom by upgrading the same is permissible to disqualify them. He asserted that the decision to terminate the Petitioners' services also lacks rationality inasmuch as, had they been found to be disqualified in the selection held in the year 2000, their services ought to have been terminated immediately thereafter. Their continuance in service for a period of three years even after their purported disqualification, according to the learned Counsel, suggests that the Petitioners are suitable to continue in the services and on that count as well, the impugned decision is liable to be interfered with in the interest of justice. 8. Mr. Chakraborty while endorsing the above arguments has submitted that considering the nature of the services to be rendered and the quality of the past services offered by the Petitioner No. 2, the decision to terminate his services on the ground that he is not qualified academically is not tenable. 8. Mr. Chakraborty while endorsing the above arguments has submitted that considering the nature of the services to be rendered and the quality of the past services offered by the Petitioner No. 2, the decision to terminate his services on the ground that he is not qualified academically is not tenable. The Petitioners having rendered sincere services to the Bank for all these years, they have a legitimate right to continue in the services of the Bank and, therefore, it is a fit case for this Court to issue an appropriate writ, directing the authorities of the Bank to regularize their services. 9. In reply Mr. Yangi submitted that as the Petitioners fall short of the guidelines prescribed by the Bank, their continuance in service by compromising therewith, would not be in the interest of administrative efficiency and, therefore, no interference is called for. Drawing the attention of this Court to the notification dated 22.6.1998 embodying the guidelines laid down by the Bank for the recruitment of its guards, the learned Counsel urged that as admittedly the Petitioner in W.P.(C) 73(SH)/2003 and the Petitioner No. I in W.P.(C) 238 (SH)/2003 are not Ex-serviceman as defined in the notification dated 27.10.1986, they are not eligible to be appointed as security guards with the Bank. As the Petitioner No. 2 in W.P.(C) 238(SH)/2003 has read only upto class IV, he does not meet the educational qualification of class VIII prescribed by the guidelines. In that view of the matter, she argued that mere continuance of the Petitioners as temporary security guards of the Bank do not vest them with any unassailable right to continue therein and, therefore, the impugned decision to terminate their services cannot be faulted with. 10. I have extended my anxious consideration to the rival contentions. Some admitted facts need be recapitulated. The Petitioner in W.P.(C) 73(SH)/2003 and the Petitioner No. 1 W.P.(C) 238(SH)/2003 being Ex-service holders of the Assam Rifles, a paramilitary force do not come within the sweep of the "Ex-serviceman" appearing in the notification dated 27/10/1986. The Petitioner No. 2 in W.P.(C) 238 (SH)/2003, however, does not suffer from this disqualification. The Petitioner in W.P.(C) 73(SH)/2003 has been serving the Bank from October, 1995. The Petitioners in W.P.(C) 238(SH)/2003, however, are in service from 1991-1992. The Petitioners, therefore admittedly have put in 10 years of service and/more with the Bank as on date. The Petitioner No. 2 in W.P.(C) 238 (SH)/2003, however, does not suffer from this disqualification. The Petitioner in W.P.(C) 73(SH)/2003 has been serving the Bank from October, 1995. The Petitioners in W.P.(C) 238(SH)/2003, however, are in service from 1991-1992. The Petitioners, therefore admittedly have put in 10 years of service and/more with the Bank as on date. As the Bank's stand is that the termination of the Petitioners' services was warranted as they failed to meet the prescriptions of the guidelines in force, it would be relevant to extract the same as contained in the communication dated 22.6.1988, Annexure B (Bank's counter in W.P.(C)73(SH)/2003). a) Educational Qualification: Minimum Class VIII Passed upto under matriculate. b) Character: Good and above. c) Medical Standard: Category 'A'. The candidate should not be a permanent low medical category. d) The candidate should not be a physically handicapped. e) Experience/Rank: Havildar or below. F) Age: 45 years or below on the date of interview. g) The candidate should be an "Ex-servicemen". 11. It appears from the said communication that the Bank Guards were generally recruited from the list of names forwarded by the Zila Sainik Board/Employment Exchange as a result whereof the Bank felt, was being offered higher age group individuals who were not absorbed elsewhere. The letter mentioned that the candidates were forwarded without considering their trade/skill level, Medical Category and also without ascertaining as to whether they were Ex-serviceman as defined in the notification dated 27.10.1986. In the above background, it was felt that in order to ensure that deserving candidates were sponsored by the Zila Sainik Board/Employment Exchange, the concerned authorities of the Bank ought to lay down the guidelines and norms of the Bank as and when they sought candidates from such Boards in future. The guidelines extracted hereinabove followed this recital. 12. Though it was assertively urged by Mrs. Yangi that the above guidelines and/or norms were also enforceable at the point of time when the Petitioners were inducted in service a clear and categorical stand to the above effect is not available in the Banks counter. On the other hand a plain reading of the narrations contained in para 2 of the notification is suggestive of the enforceability of the guidelines for future recruitments. 13. On the other hand a plain reading of the narrations contained in para 2 of the notification is suggestive of the enforceability of the guidelines for future recruitments. 13. Be that as it may, the extract of the proceedings of the selection held in the year 2000 produced in course of the arguments discloses that the Petitioner in W.P.(C) 73(SH)/2003 and the Petitioner No. 1 in W.P.(C) 238(SH)/2003 were disqualified for not being Ex-serviceman within the meaning of the aforementioned notification. The Petitioner No. 2 in W.P.(C) 238 (SH)/03 was not selected as he was under qualified academically. On a pointed query made by this Court to explain as to why inspite of the Petitioners' disqualification, they were continued with for more than three years, the learned Counsel for the Bank submitted that as in the meantime they had completed 240 days of continuous service they were entitled to be paid compensation in terms of Section 25F of the Industrial Disputes Act, 1947, and that the delay was for completion of necessary formalities in that regard. The learned Counsel also produced a notification dated 20/8/2003 to the said effect. 14. The above narrative demonstrates that presently there is no material on record to decisively hold that the guidelines of eligibility contained in the letter dated 22/6/1998 were in force at the point of time when the Petitioners were inducted in service. The same indubitably are in force as on date. Though there cannot be any doubt about the Bank's authority to prescribe the conditions of eligibility for its recruits commensurate with its job requirements, the question is whether a fresh yardstick not in existence at the point of entry of the Petitioners can be applied for disqualifying them for regular appointment or continuance in service more particularly when they have in the meantime put in more than 10 years of continuous service. It has been submitted at the bar that no deficiency as such have been noticed in the quality of the Petitioner's services over the years. The reason for termination of their services is that two of them as above are not Ex-serviceman and one is not qualified academically. 15. In the above view of the matter, I am of the opinion that the Bank's decision to terminate the Petitioners' services on the aforementioned grounds in the particular facts and circumstances of the case requires reconsideration. The reason for termination of their services is that two of them as above are not Ex-serviceman and one is not qualified academically. 15. In the above view of the matter, I am of the opinion that the Bank's decision to terminate the Petitioners' services on the aforementioned grounds in the particular facts and circumstances of the case requires reconsideration. The Petitioners having been recruited at a point of time when prima facie the guidelines embodied in the letter dated 22.6.1998 were not in force, the application thereof to disqualify them at this distance point of time appears to be unfair. This is more so when it is not the Banks stand vis-a-vis the Petitioners that their retention in service would result in compromising with the level of performance required of its Security Guards. However, as the decision to regularize the services of the Petitioners would finally rest with the Bank, this Court is not inclined to issue any write of mandamus to the said effect. In the above view of the matter, the petition is closed with a direction to the Respondent No. 4, Dy. General Manager (Security), Zonal Office, State Bank of India, Dhankheti, Shillong, to reexamine the issue in the light of the above observations and take a final decision in this regard. Needless to say that till the exercise as indicated hereinabove is complex, the Petitioners' services as on date would not be disturbed. No costs.