Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 417 (GAU)

Tapan Kumar Das v. Tripura Gramin Bank

2012-03-30

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. The petitioners aspiring for promotion to the posts of Assistant Manager (Jr. Management Scale-I) with effect from the date of promotion of the officers named in the writ petition have filed this writ petition assailing the legality and/or validity of the Annexure-P/4 orders dated 2.8.2011 and 4.8.2011 conveying the decision to hold selections for the same requiring the petitioners and other eligible officers to appear in the written test and oral interview for promotion as per rules. The petitioners are presently working as Clerk-cum-cashier, as well as clerk-cum-typist from which post, they aspire for promotion to the aforesaid post classified as Scale-I officer. It was vide notification dated 297.1998 issued by the Government of India, Ministry of Finance the method of recruitment to the post of Scale-I officers, classified as Grade-A post was notified. As per the said notification, the source of appointment is 50% by direct recruitment and 50% by promotion. The promotions are to be made on the basis of the seniority cum merit. Various parameters and yardsticks have been laid down for promotion laying down the mode of selection by promotion. It was specified that the selection of candidates would be made on the basis of written test, interview and the performance appraisal report. 2. In the year 2004, some vacancies arose in the Grade of scale- I officer and with a view to fill up the same, the eligible aspirants including the petitioners were directed to appear in the written test and in compliance thereof they appeared in the said written test. The petitioners have indicated in the writ petition about the inter-se seniority position as on 23.5.2004 of the petitioners vis-a-vis the officers named in paragraph 2.4 of the writ petition. It will be pertinent to mention here that the said officers are not party respondents in this proceeding. 3. Placing reliance on the depiction of inter-se seniority, it is the case of the petitioners that having regard to their seniority positions and the marks obtained in the written examination, they were entitled to get promotion in respect of the selection conducted in 2005. According to the petitioners, although the bank had published the results of 45 candidates, who had participated in the selection process/written test, the results of all the incumbents/ participants had not been published. According to the petitioners, although the bank had published the results of 45 candidates, who had participated in the selection process/written test, the results of all the incumbents/ participants had not been published. Be it stated here that in the selection conducted in 2005, only 8 vacancies had been notified. The petitioners have made a grievance that a wrong: method was adopted in considering only the first 16 candidates (8 :2) on the basis of seniority position and not on the basis of the marks obtained. According to the petitioners, because of adopting such a methodology, majority of the petitioners not within the first 16 positions were not called for interview, although had secured better marks than the 7 officers named in the writ petition in reference to whom the petitioners have prayed for promotion. Be it stated here that the said 7 officers are not party to this proceeding. 4. The petitioners have also referred to the fact of preferring two writ petitions namely WP(C) No. 161/2005 [re-numbered as WP(C) No. 72/2008] and WP(C) No. 160/ 2005 [renumbered as WP(C) No. 71/2008], by which one Sri Sambhu Prasad Dhyani and Sri Tapan Bhattacharjee making a grievance against their non-promotion. In the writ petitions, the plca raised was deviation from the principles of seniority-cum-merit while effecting the promotions. 5. The petitioners along with three others filed two separate applications seeking participation in the hearing of the two writ petition as interveners. When the matter rested thus, the respondent Bank took a decision to give promotion to the two writ petitioners with effect from 1.10.2009 and consequently the writ petitions were withdrawn, as a result of which the two applications submitted by the petitioners referred to above did not survive. 6. As stated in the writ petition, 17 more vacancies arose in the year 2009, for which again a written test was held, wherein the petitioners along with others participated. However, they became unsuccessful. Reverting back to the selection conducted in 2005, the petitioners have contended that out of the selection of 2005 only 8 candidates were promoted without exhausting the entire panel and in the process, the candidates including the petitioners, who were successful in the written test, were not called to participate in the subsequent stage i.e. the interview. 7. Reverting back to the selection conducted in 2005, the petitioners have contended that out of the selection of 2005 only 8 candidates were promoted without exhausting the entire panel and in the process, the candidates including the petitioners, who were successful in the written test, were not called to participate in the subsequent stage i.e. the interview. 7. According to the petitioners, their case being equally circumstanced with that of the petitioners involved in the two writ petitions referred to above, the Bank ought to have promoted them at par with the said two writ petitioners. However, the same was not to be and consequently the petitioners filed WP(C) No. 112/2011 challenging the promotion of the said two writ petitioners with alternative prayer for their promotion at par with the said two writ petitioners. 8. The aforesaid writ petition came to be finally disposed of by order dated 4.5.2011. Operative part of the said order is quoted below : Now, question remains whether the petitioners have any right to be promoted to Scale I Officer (Group-A) more particularly on the basis that they have completed their departmental examination in the year 2005 when there were vacancies in the post of Scale I Officer (Group-A). According to this Court, promotion is not a right, rather consideration for promotion is a right of an employee, in view of the submission of Mr. Lodh, inter alia that out of 143 posts 69 posts are meant for direct recruitees, question of promoting the petitioners against those 69 posts does not arise. Now, debate remains about the remaining posts. It transpires from the submission of Mr. Lodh that out of the remaining posts, 41 vacancies arose subsequent to the new rules came into force and only 33 posts can be filled up from the eligible persons in the Group B i.e. the feeder post in which the petitioners are at present working. It appears from the record that 143 posts were lying vacant since March 2010. Therefore, it cannot be said that only 33 posts of Scale 1 (Group A) officer are available for filling up by promotion from the feeder post. It appears from the record that 143 posts were lying vacant since March 2010. Therefore, it cannot be said that only 33 posts of Scale 1 (Group A) officer are available for filling up by promotion from the feeder post. There is no doubt that when the new rules came into force on 13.7.2010 then the vacancies have to be filled up under the new rules, but at the same time when it is an admitted position that the vacancies arose prior to new rules came into force, the petitioners are entitled to be considered for promotion against those vacancies under the rule that was applicable at the relevant time in view of the decision of this Court rendered in Bholanath Bhattacharjee and others v. State of Tripura and others, (1994) 1 GLR 164 wherein a Full bench of this Court in a similar circumstances after taking note of the decision of the Apex Court in State of J&K v. Triloki Nath Khosa, AIR 1974 SC 1 observed that when new rules are framed, all officers in service at that time would naturally be governed by those rules, and if retrospective effect is not granted to the Rules, vested rights will not be affected. Of course offices in service when 1962 Rules were repealed, did have a right to be considered for promotion to the next higher post in accordance with those Rules but only to the vacancies which existed at the time of the repeal. They do not have a right to contend that all future vacancies in the cadre of Inspectors of Police should be governed only by the Rules in force when they became Sub-inspectors of Police. Their claim must necessarily be confined to those vacancies which existed when new Rules took effect. Therefore, the respondents are directed to consider the case of the petitioners in terms of the earlier rules subject to the vacancies arose prior to 13.7.2010. It is made clear that if it is found that the aforesaid 41 vacancies in Scale 17 (Group A) officer arose after the new rules came into force then the case of the petitioner, if to be considered, has to be considered under the new Rules. It is made clear that if it is found that the aforesaid 41 vacancies in Scale 17 (Group A) officer arose after the new rules came into force then the case of the petitioner, if to be considered, has to be considered under the new Rules. It is also made clear that when the prescription in the Rules for promotion is seniority-cum-merit then seniority will prevail over the merit subject to the senior persons fulfill the other conditions laid down in the Rues. With the above observations and directions, this writ petition is disposed of. 9. After the aforesaid order passed by this Court, the petitioners submitted representation to the respondent Bank urging for their promotion. According to the petitioners on a reading of the pleadings in the earlier proceeding including the above quoted order, their cases are required to be considered against 33 vacancies under the old rules. It is the further plea of the petitioners that their cases are required to be considered in reference to their performance in 2005 selection and consequently they are not required to appear in any fresh examination. Emphasizing on the expression "considered' appearing in the above quoted order dated 4.5.2011, the petitioners have contended that their cases were required to be considered in reference to their performance in the 2005 selection. It has been pleaded that their performance in the said selection was better than the two writ petitioners referred to above. The petitioners have also referred to the promotion given to the 7 officers named in paragraph 4 of the writ petition stating that they being at par with the said officer are also entitled to get promotion with retrospective effect. 10. The respondents have filed their affidavits, one on 11.11.2011 and another in the form of an additional counter affidavit on 13.2.2012 denying the aforesaid pleas raised by the petitioners. It has been contended that the analogy that has been drawn by the petitioners in reference to the two writ petitioners referred to above is wholly untenable inasmuch as they are much senior to the petitioners. It has also been contended that the other officers named by the petitioners were also senior to the petitioners in the feeder grade. It has been contended that the analogy that has been drawn by the petitioners in reference to the two writ petitioners referred to above is wholly untenable inasmuch as they are much senior to the petitioners. It has also been contended that the other officers named by the petitioners were also senior to the petitioners in the feeder grade. In reference to the 2005 selection, it has been stated that the 8 persons who got promotion were promoted on the basis of their seniority above the petitioners based on their performance in the selection. On that occasion, the petitioners were not within the zone of consideration and consequently could not be called for the interview. Referring to the fresh selection process initiated by the impugned communications, it has been stated that the same pertain to 22 and 41 vacancies respectively to be filed up as per the old and the new rules. It has been specifically stated that for 8 vacancies applying the ratio of 1 :2, 16 candidates were called for the interview, who had conformed to the requirement of minimum bench marks. The petitioners were not within the zone of consideration in terms of said ratioand thus could not be called for the interview. 11. As regards the 2009 selection, counter affidavit states that although the petitioners appeared in the said selection, they did not succeed and consequently could not be promoted. The respondents have also indicated the reservation of vacancies for 22 and 41 posts. Dealing with the plea of the petitioners that there are 33 vacancies to be filled up as per old rules, it has been stated that out of 33 vacancies, the Bank has already filled up 11 vacancies on different dates pursuant to the proceeding in the two writ petitions referred to above filed by Sri Sambhu Prasad Dhyani and Sri Tapan Bhattacharjee. 12. One significant aspect of the matter as depicted in the counter affidavit is that the petitioner did not appear in the selection conducted for the 22 vacant posts although they were issued with the call letters on 15.9.2011. Another significant aspect is that the petitioners appeared in the selection process for 41 posts to be filled up as per the new recruitment rules. On the other hand, the petitioners have challenged both the selections initiated vide Annexure-P14 communications dated 2.8.2011 and 4.8.2011. 13. Another significant aspect is that the petitioners appeared in the selection process for 41 posts to be filled up as per the new recruitment rules. On the other hand, the petitioners have challenged both the selections initiated vide Annexure-P14 communications dated 2.8.2011 and 4.8.2011. 13. In the additional counter affidavit, the respondents have furnished more details of the selection process that has been initiated. It has been stated that the additional 41 posts of Scale-I was approved by the sponsor Bank by a communication dated 23.9.2010 for which a proposal was made on 9.6.2010 upon coming into to force the new recruitment rules of 2010, which is prior to date of approval i.e. 23.9.2010, the said posts are now required to be filled up under the new recruitment rules. Be it stated here that in the new recruitment rule came into force with effect from 13.7.2010. 14. Referring to the case of the two writ petitioners involved in the two writ petitions referred to above, it has been stated that they were promoted in consideration of their seniority and when it was found that their juniors were promoted in 2005 against 8 vacancies. It has again been reiterated that the said two candidates were senior to all of the petitioners in the feeder post. 15. As regards the plea of the petitioners that there were 33 posts to be filled up under the old rules, the additional affidavit states that 11 posts were filled up in 2011 with retrospective effect and thus only 22 posts remain in the fray. 16. I have heard Mr. Somik Deb, Learned Counsel for the petitioners as well as Mr. A.K. Bhowmik, learned Sr. Counsel along with Mr. K. Bhattacharjee, Learned Counsel, representing the respondent Bank. I have also heard Mr. C.S. Sinha, Learned Counsel representing the newly impleaded respondents. I have also considered the relevant materials on record including the records produced to- day during the course of hearing by the respondent Bank. 17. Mr. Deb, Learned Counsel for the petitioners submits that in terms of the direction contained in the order dated 4.5.2011, operative part of which is quoted above, the respondents Bank is duty bound to consider the case of the petitioners in reference to their performance in 2005 selection. He further submits that the stand of the respondents as reflected in the counter affidavit and additional counter affidavit is self contradictory. He further submits that the stand of the respondents as reflected in the counter affidavit and additional counter affidavit is self contradictory. 18. Countering the above argument, Mr. Bhowmik, learned Sr. Counsel along with Mr. K. Bhattacharjee, Learned Counsel for the respondent Bank submits that the petitioners being unsuccessful in 2005 and 2009 selection and also having appeared in response to the impugned notification issued for filling up 41 vacancies are estopped from raising the pleas referred to above. Mr. Sinha, Learned Counsel representing the newly impleaded respondents has also submitted that the writ petition is misconceived and consequently the stay order operating in the proceeding is required to be vacated. 19. As noted above, the petitioners are under a serious misconception in the matter of promotion involving principles of seniority-cum-merit. In paragraph 2.6 of the writ petition, the petitioners have contended that in 2005 selection although they had secured better marks than the 7 officers named in the writ petition (not party to the proceeding), they were illegally not called for the interview. At the first instance, in the matter promotion following the principles of seniority-cum-merit, the person securing the minimum bench mark is to be promoted irrespective of better marks secured by the juniors. As contended in the counter affidavits and not denied by the petitioners. In 2005 selection, there were only 8 vacancies and following the ratio of 1 : 2, 16 candidates were considered for promotion and the petitioners did not come within the zone of consideration as their seniority position did not permit. As pointed out by the Apex Court in B.V. Sivaiab & Ors. v. K, Addanki Babu & Ors., reported in (1998) 6 SCC 720 , seniority-cum-merit principle on promotion implies fulfillment of minimum prescribed standard of merit by candidates eligible for consideration and then making promotion out of them on the basis of their inter-se seniority irrespective of their comparative merit. 20. The petitioners being not within the zone of consideration, irrespective of their performance in the written examination could not be called for the interview and consequently they could not be selected in 2005 selection. The plea of the respondents that none of the promotees was junior to the petitioners has not been denied be them. Further, the said officers being not party respondents to this proceeding, no adverse order can be passed against them. 21. The plea of the respondents that none of the promotees was junior to the petitioners has not been denied be them. Further, the said officers being not party respondents to this proceeding, no adverse order can be passed against them. 21. After the aforesaid process Selection 2005, the petitioners kept on waiting for 4 years and the appeared in the 2009 selection in which they became unsuccessful. The petitioners have raised any grievance in respect of the said selection of 2009. Their claim for promotion on the basis of the 2005 selection automatically stood abandoned. Not only that, they have also appeared in the selection pursuant to the Annexure-P-II communication dated 4.8.2011 without any reservation. The said selection is as per the new recruitment rules for 41 posts. On the other hand they did not appear in respect of the selection conducted for 22 posts under the old rules pursuant to the impugned communication dated 2.8.2011, although they were invited for the same. If the petitioners had chosen not to appear in the selection conducted for 22 posts, same is to their own peril. On the other hand, their performance in the selection conducted against the 41, posts under the new rules is required to be judged on their own merit. 22. During the course of hearing of the writ petition, Mr. Deb, Learned Counsel for the petitioners has referred to the orders passed by this Court in the earlier proceeding. He has also referred to the written submission submitted by him so as to contend that the respondent Bank has deviated in their depiction of actual vacancy position. In his persuasive pursuits, he has also submitted that having regard to the nature and tenor of the order passed in the earlier writ petition filed by the petitioners, operative part of which has been quoted above, the respondent Bank is required to consider the case of the petitioners in reference to the 2005 selection. 23. Referring to the decision in State of Uttar Pradesh & Anr. v. Santosh Kumar Mishra & Anr., reported in (2010) 9 SCC 52 , Mr. Deb, Learned Counsel for the petitioners has submitted that the Bank cannot give different interpretation of the same rules at two different points relating to same persons. Be it stated here that Mr. Bhowmik, learned Sr. v. Santosh Kumar Mishra & Anr., reported in (2010) 9 SCC 52 , Mr. Deb, Learned Counsel for the petitioners has submitted that the Bank cannot give different interpretation of the same rules at two different points relating to same persons. Be it stated here that Mr. Bhowmik, learned Sr. Counsel for the respondent Bank has also placed reliance on the decision of the Apex Court in Chandra Prakash Tizvari & Ors. v. Shakuntala Shukla & Ors., reported in (2002) 6 SCC 127 to advance his plea that the claim of the petitioners is barred by the principles of estoppels. 24. From the aforesaid discussions, what has emerged is that the petitioners appeared in the 2005 selection, but they being not within the zone of consideration in terms of the ratio of 1:2 against 8 vacancies could not be called for the interview. They did not make any grievance in respect of the said selection, but only filed two applications in the writ petitions filed by two other officers referred to above. When the said two writ petitions were withdrawn, nothing survived for the petitioner to urge. Thereafter they appeared in 2009 selection, but became unsuccessful. Then they filed WP(C) No. 112/2011 challenging the promotion made in favour of the two writ petitioners involved in the aforementioned two writ petitions filed in 2005. Their writ petitions were disposed of by the above quoted order. By the said order only direction issued was to consider the case of the petitioners both "under the old rules and the new rules. There is no direction as such to consider the case of the petitioners in reference to 2005 selection. It is pursuant to this direction, the respondent Bank is now prepared to consider their cases for which the impugned Annexure-4 communications dated 2.8.2011 and 4.8.2011 have been issued. 25. Although in the said order dated 4.5.2011, there is reference of 33 posts and 41 posts respectively, but the respondents have pointed out as to how there are only 22 posts to be considered under the old rules and 41 posts under the new rules. In the said order answering the question as to whether the petitioners have any right to be promoted in reference to 2005 selection, the order states that promotion is not a right and that only right is to get consideration for promotion. In the said order answering the question as to whether the petitioners have any right to be promoted in reference to 2005 selection, the order states that promotion is not a right and that only right is to get consideration for promotion. In the order, there is no direction to consider the case of the petitioners in terms of the 2005 selection. The direction to consider the case of the petitioners cannot cloth them with the right to get promotion in reference to the 2005 selection. 26. During the course of hearing, Mr. Deb, Learned Counsel for the petitioners made submissions beyond the pleadings. Apart from his submission regarding variation of number of posts, he has also submitted that all the posts are required to be filled up as per the provisions of the old rules and that 41 posts newly created cannot be filled up as per the new rules. Although the petitioners did not respond to the call letters issued to them to appear in the selection It conducted for the vacancies under the old rules, but they appeared in the selection conducted for 41 vacancies under the new rules. Referring to the various communications, it is argued by Mr. Deb, Learned Counsel for the petitioners that 41 vacancies, in fact arose and/or created before the new recruitment rules and thus are required to be filled up under the old rules. On being pointed out as to why the petitioner did not appear in the selection conducted under the old rules, Mr. Deb, Learned Counsel for the petitioners has submitted beyond the pleadings that the real vacancy position having not been depicted, the petitioners had chosen not to appear in the said selection. He has fairly admitted that no such pleadings are discernible in the writ petition. 27. Although as per the provisions of regional Rural Banks (Appointment and Promotion of Officers and Employees) Rules, 2010, creation of posts vests with the Board and the Board is also empowered to determine the number of vacancies in each category of posts, but it cannot be lost sight of the fact that the respondent No. 5 is the sponsor bank of the respondent No. 1 Bank. That being the position, irrespective of the aforesaid provision on in the Rules of 2010, approval was required to be obtained from the sponsor Bank in respect of filling up of the vacancies. That being the position, irrespective of the aforesaid provision on in the Rules of 2010, approval was required to be obtained from the sponsor Bank in respect of filling up of the vacancies. Such approval came to be issued on 23.9.2010 after coming into force of the new rules. 28. In consideration of the approval accorded by the sponsor Bank by its letter dated 23.9.2010, the Board in its meeting held on 28.9.2010 made the proposal to initiate process for promotion and direct recruitment in different cadres as was suggested by the sponsor Bank. Thus the decision to initiate process to fill up the posts was taken much after coming into force of the new recruitment rules. Even otherwise also there is no absolute rules vacancies which arose before the new rules must be filled up under that rules and not as per the amended and/or new rules. As would be evident from the aforesaid resolution adopted by the Board of Directors of the Bank coupled with the approval accorded by the sponsor Bank, a conscious decision was taken to fill up the posts under the new rules and accordingly by the impugned communication, process was stated for conducting selection. 29. As noted above, the petitioners have also participated in the said selection without any reservation. However, simultaneously they have also challenged the same very selection process in which they have already participated. I am afraid such a course of action adopted by the petitioners is not open to them in law. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. Interim order operating in this proceeding stands vacated. There shall be no order as to costs. Petition dismissed