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2009 DIGILAW 637 (ALL)

SHREEP RAKASH v. BOARD OF DIRECTORS KISAN GRAMIN BANK BUDAUN

2009-02-26

S.RAFAT ALAM, SUDHIR AGARWAL

body2009
Heard Sri Ramendra Asthana, learned counsel for the petitioner and Sri Dharmendra Vaishya, who has put in appearance on behalf of the respondent No. 3. 2. Aggrieved by the order dated 29. 6. 2001 and 25th September, 2001 (Annexures-11 and 13 to the writ petition) rejecting petitioners representation and appeal disputing his seniority, present writ petition has been filed challenging the aforesaid orders as well as the seniority list dated 21. 11. 2000. 3. The facts in brief giving rise to the present dispute are as under: The petitioner vide order dated 3rd July, 1985 was appointed as Probationary Officer in the pay scale of Rs. 690-1420 in Kisan Gramin Bank (hereinafter referred to as the bank ). A copy of the appointment letter is Annexure-1 to the writ petition. The period of probation was two years liable to be extended by the Bank in its discretion. The petitioners probation was extended by, three months vide letter dated 8th July. 1987 issued by the competent authority and thereafter he was confirmed w. e. f. 10. 10. 1987. Though, the petitioner has stated that he represented to the respondent No. 1 against the letter dated 8th July, 1987 whereby his probation was extended but there is nothing on record to show that the said letter was ever recalled. On the contrary the petitioner was admittedly confirmed on 10th July, 1987, It is thus evident that after expiry of the extended period of three months probation, he was confirmed by respondent No. 1. A seniority list was published on 7th August, 1988 wherein the petitioners name was at serial No. 28 while the respondents No. 4 and 5 were shown at serial No. 26 and 27. This list was prepared as per the Rules applicable at that time which provided for placing a person lower in seniority among his batch mates if his probation is extended. It is said that the petitioner filed his objection against the said list but did not receive any response from the respondents. Another seniority list was published on 17th July, 1994 wherein also the petitioner was shown at serial No; 29 i. e. below the respondents No. 4 and 5. Third seniority list was published on 23rd May, 1995 and fourth one on 3rd July, 1998. The position of the petitioner and respondent Nos. 4 and 5 remained same. Another seniority list was published on 17th July, 1994 wherein also the petitioner was shown at serial No; 29 i. e. below the respondents No. 4 and 5. Third seniority list was published on 23rd May, 1995 and fourth one on 3rd July, 1998. The position of the petitioner and respondent Nos. 4 and 5 remained same. It is stated that against the fourth seniority list, the petitioner filed an objection on 22nd August, 1998 but the same was also not disposed of. Thereafter, the fifth seniority list was published on 21. 11. 2000 where against the petitioner filed his objection on 30. 12. 2000. When the said objection was not decided, he filed Writ Petition No. 21297 of 2001 impleading Board of Directors, Kisan Gramin Bank and its Chairman as respondents No. 1 and 2. The relief sought in the writ petition were as under: (a) issue a writ, order or direction in the nature of mandamus commanding the respondent No. 2 to dispose of in accordance with law, representations of the petitioner dated 22. 8. 1998 (Annexure VI to this writ petition) and 30. 12. 1998 (Annexure VII to this writ petition) within one month or within as short period as may be deemed to be necessary under the facts and circumstances of the case; (b) issue a writ, order or direction in the nature of mandamus commanding the respondents not to make any promotion of the persons junior to the petitioner during pendency of the aforesaid representations; (c) issue such other further suitable writ, order or direction as may be deemed to be proper; (d) award costs to the petitioner. 4. The aforesaid writ petition was disposed of on 25th May, 2001 directing the competent authority to decide petitioners representations dated 22. 8. 1998 and 3. 7. 1998 within six weeks after hearing the concerned parties. Pursuant to the said judgment, it appears that the matter was heard by the Chairman of the Bank and he vide order dated 29th June, 2001 rejected petitioners objection and upheld his seniority below the respondents No. 4 and 5. The petitioners appeal against the said order was considered by the Board of Directors and in their meeting dated 5. 9. 2001 they also rejected the same. The said decision was communicated to the petitioner vide letter dated 25th September, 2001 (Annexure-13 to the writ petition) impugned herein. 5. The petitioners appeal against the said order was considered by the Board of Directors and in their meeting dated 5. 9. 2001 they also rejected the same. The said decision was communicated to the petitioner vide letter dated 25th September, 2001 (Annexure-13 to the writ petition) impugned herein. 5. The contention of the learned counsel for the petitioner is that Rule 13 of Kisan Gramin Bank (Officers and Employees) Service Regulations, 2000 (hereinafter referred to as the regulations 2000) governs the matter of seniority of the petitioner qua other private respondents i. e. respondents No. 4 and 5. Rule 13 (v) of Regulations 2000 provides that the inter se seniority of officers or employee directly recruited in a batch to any cadre or scale shall be reckoned with reference to the rank allotted to them at the time of their selection. He submitted that the petitioner was at serial No. 2 in the merit list while the respondents No. 4 and 5 were below him and therefore, the petitioner was entitled for seniority over respondents No. 4 and 5 according to Rule 13 (v) of Regulations 2000. He contended that the aforesaid aspect has not been considered by the authorities of the Bank namely respondents No. 1 and 2 correctly and therefore, the impugned order is liable to be set aside. 6. On behalf of the Bank a counter affidavit has been filed sworn by Sri N. K. Kacker, Chairman of the Bank supporting the order impugned in the writ petition. It has been stated that petitioners probation was extended for a period of three months after assessing his performance. On expiry of the said extended period of probation, his performance was reviewed, and finding the same satisfactory, he was confirmed w. e. f. 10. 10. 1987 vide Banks letter dated 10. 10. 1987. In the seniority list, which was prepared on 27th August, 1988 the name of petitioner was rightly placed below Raja Babu and Sheetal Das Sagar for the reasons that the Rule as applicable to the employees of the Bank at that time provided that if probation of an officer or employee is extended his seniority shall be reckoned just below all the officers or employees, if any, recruited in the same batch along with him. Chapter III Rule 13 (iii) of the Model Regulations provided to this effect and referred to in para-9 of the counter affidavit. It is submitted that subsequent rules are applicable and therefore, petitioners representation has been rejected. In para 12,13 and 14, further it is pleaded that the seniority list of 1994-95 is only updated subsequently as on the date of their preparation and it was not a case of revision of seniority of the persons, which was already finalised. A short counter affidavit has been filed on behalf of respondent No. 3 adopting reply of the Bank. 7. We have heard learned counsel for the parties and perused the records as well as relevant provisions applicable in the case. 8. When we confronted learned counsel for the petitioner that Rule 13 (iii) referred to in para 9 of the counter affidavit of the Bank, does not tally with that as contained in Rule 13 of Regulations 2000, learned counsel appearing for the respondents drew our attention to the fact that Regulations 2000 relied upon by the petitioner are not at all applicable in the case in hand inasmuch as the said Regulations were framed in the year 2000 and are prospective in their operation. Regulation 1 of Regulations 2000 reads as under: 1. Short title, commencement and application (i) These regulations may be called Kisan Qramin Bank, Badaun (Officers and Employees) Service Regulations, 2000. (ii) These regulations shall come into force on the date of their publication in the official Gazette. (iii) They shall apply to every officer and employee of the Bank: Provided that they shall not apply, except as otherwise provided in these regulations or to such extent as may be specifically or generally specified by the Board to- (a) a person employed temporarily on daily wages or to such person engaged on contract, (b) a person on deputation from Sponsor Bank or the Central Government or the State Government or any other organisation. A perusal of the Regulation 1 (ii) and (iii) of Regulation 2000 clearly shows that they are effective from the date of publication in the official Gazette meaning thereby that they are not retrospective. A perusal of the Regulation 1 (ii) and (iii) of Regulation 2000 clearly shows that they are effective from the date of publication in the official Gazette meaning thereby that they are not retrospective. On inquiry, we are informed that before enforcement of Regulations 2000 the condition of services of petitioner and other employees of the Bank were governed by Model (Staff) Service Regulations for the officers/employees of Kisan Gramin Bank, Badaun (hereinafter referred to as model Regulations) and Regulation 13 thereof reads as under: 13. Seniority 1 (a) Seniority of an officer or employee of the Bank in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. (b) Where there are two or more officers of the same length of service in that grade or scale their inter se seniority shall be recknoned with reference to their seniority in the immediately preceding grade or scale or the previous grade or scale or the previous cadre to which they belong in the Banks service. (c) Where there are two or more officers of the same length of service of such grade or scale or such previous cadre their seniority shall be determined with reference to their seniority in the immediately preceding grade or scale or cadre, as the case may be; provided that the inter se seniority of the field officers or accountants vis-a-vis the Branch Manager, who were in the service of the Bank on the date on which the revised pay scales notified by the Ministry of Finance, Department of Economic Affairs, Banking Division letter No. 2-17/79-RRB dated the 29th April, 1980 are adopted by the bank, maybe so reckoned that all the Field Officers & Accountant rank junior to the then existing branch manager. (2) The inter-se seniority of officers or employees directly recruited in batch to any grade or scale shall be reckoned with reference to the rank allotted to them at the time of such recruitment. (3) In the case of an officer or employee whose probation has been extended, his seniority shall be reckoned just below all the officers or employees, if any, recruited or promoted in the same batch along with him. 9. (3) In the case of an officer or employee whose probation has been extended, his seniority shall be reckoned just below all the officers or employees, if any, recruited or promoted in the same batch along with him. 9. Sub-Regulation (3) of Regulation 13 makes it very clear that in case of an officer or employee whose probation is extended his seniority shall be reckoned just below the officers, if any, recruited in the same batch along with him meaning thereby that even if a person is higher in the merit list of the same batch of recruited officers, he would loose his seniority if his period of probation is extended and in that case he would go below all the officers who though are lower in merit in the panel i. e. merit list but have been confirmed on due date without any extension of probation. 10. Sri Asthana, learned counsel for the petitioner, could not dispute that at the time when he was appointed in the Bank the Model Regulations were applicable and the seniority list was prepared by the Bank in accordance with the Regulation 13 thereof. The validity of Regulation 13 has not been challenged in this writ petition. Therefore, the matter of seniority of the petitioner has to be decided in accordance with the said regulations, which were applicable to him when his seniority qua respondents No. 4 and 5 was decided for the first time in 1988. 11. Moreover, from the order dated 29-6-2001 respondent No. 2 rejecting petitioners representation, it appears that the objection of the petitioner against 1988 seniority list was rejected by the Board of Directors on 23rd September, 1988 and the said decision was communicated to the petitioner vide letter No. Jan/2612222 dated 21. 1. 1989. In the writ petition, the petitioner has nowhere stated that the said fact is incorrect or that he was never served with the aforesaid letter dated 21. 1. 1989. That being so, it is evident that petitioners seniority has attained finality as back in 1988 or 1989 qua respondents No. 4 and 5 and the said order has not been challenged before any appropriate forum. The petitioner cannot be permitted to challenge the subsequent seniority lists, which nowhere alter his position qua respondents No. 4 and 5, but only included others names to update the seniority list. The petitioner cannot be permitted to challenge the subsequent seniority lists, which nowhere alter his position qua respondents No. 4 and 5, but only included others names to update the seniority list. The seniority once determined in accordance with rules as applicable when seniority was determined, cannot be challenged on promulgation of new rules, which are prospective and not retrospective. Learned counsel for the petitioner could not show as to how Regulations 2000 would help him and can be pressed into service to challenge the seniority of the petitioner determined in 1988 qua respondents No. 4 and 5, which has attained finality since then. 12. It is well settled that in the matter of seniority, where rules exists and their validity is not under challenge, they have to be applied giving force to each word and phrase so as to determine seniority of the persons governed by such Rules [see AIR 1991 SC 284 (para 3), Keshav Chandra Jodhi and others v. Union of India and others; 1999 (4) SLR 409 (All) (FB) (para-18), K. N. Singh v. State of U. P. ] In Karam Pal v. Union of India and others, AIR 1985 SC 774 (para-13), it was held that in the absence of challenge to the Rules and Regulations resultant situation flowing from compliance of the same is not open to attack. 13. In view of above, we are clearly of the view that there is no error in the seniority of the petitioner qua respondent Nos. 4 and 5 and the same has rightly been determined in accordance with Rule 13 (3) of Model Regulations. The writ petition, therefore, lacks merit and is dismissed. 14. There shall be no order as to costs. .