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Madhya Pradesh High Court · body

2013 DIGILAW 287 (MP)

K. B. Joshi v. State Bank of India

2013-03-04

SANJAY YADAV

body2013
JUDGMENT : Sanjay Yadav, J. Though directed against the order dated 07-10-2011 and14-10-2011 which are the Scheme for Career Progression within the cadre one time relaxation of career progression scheme in respect of employees of State Bank of India and State of Saurastra (the State Bank of Indore which the present case relates to was acquired by way of amalgamation by the State Bank of India vide Acquisition of Bank of Indore order,2010, published with Gazette of India: Extraordinary : Part II Section 3(i) dated 28th July, 2010). The challenge however is confined to specific clause i.e., Clause V of the Scheme which stipulates that if erstwhile employees of State Bank of Indore refuse to accept the in-cadre promotion to the post of Senior-Special Assistant or Special Assistant or Senior Assistant offered in the current year or in future, the payment of special they were drawing as per e-SBIN norms will be stopped forthwith and they shall be treated as Assistants in State Bank of India with attendant special pay and duties and responsibilities. 2. Facts not in dispute are that prior to merger of his service with State Bank of India the petitioner was an employee of State Bank of Indore initially appointed on1-11-1978 as Clerk-cum-Cashier cum Godown Keeper and after earning due promotion was holding the post of Special Assistant drawing special pay of Rs. 1180 as per the policy in vogue in State Bank of Indore. 3. That at the time of absorption in the State Bank of India the career progression policy which was in vogue was as settled vide bipartite settlement dated 12-04-1999 arrived at between the State Bank of India and All India State Bank of India staff Federation which was revised on 22-07-2003,16-06-2005, 23-10-2006, 29-08-2009 which led to framing of policy for in-cadre promotion to clerical staff on completion of certain number of years of service and fulfilling requisite criteria. That under settlement dated 29-08-2009 it was decided that a Senior Assistant having put in 10 years of service would draw special pay per month Rs. 1470; special Assistant on completion of 20 years would draw special pay per month Rs. 2450 and Senior-Special Assistant on completion of 30 years would draw special pay per month Rs. 2430 + 3500. 4. 1470; special Assistant on completion of 20 years would draw special pay per month Rs. 2450 and Senior-Special Assistant on completion of 30 years would draw special pay per month Rs. 2430 + 3500. 4. That the absorption of the petitioner's service with the State Bank of India was an outcome of an acquisition of State Bank of Indore which was a result of negotiation entered into with prior sanction of Central Government under section 35(2)of the State Bank of India Act, 1955 and in consultation with the Reserve Bank of India, vide Notification dated 28-07-2010which came into existence after expiry of 30 days i.e.28-08-02010. 5. Clause 7, 8 and 13 of the Notification provided for : “7. Every permanent officer or other permanent employee of the Transferor Bank, including the officers or employees on probation (except the Board of Directors and Executive Trustees) serving in the employment of the Transfer or Bank immediately before the effective date shall hold his office or service therein in the Transferor Bank on such terms and conditions as may be approved by the Central Board of the Transferee Bank and shall continue to work as an officer or, as the case may be, employee of the Transferee Bank. Provided that the pay and allowances offered to the officers or employees of the Transferor Bank shall not be less than the overall pay and allowances as they would have drawn in the Transferor Bank. 8. The officers or employees of the Transferor Bank shall be given an offer of employment or option letter in writing by the Transferee Bank and where an officer or other employee of the Transferor Bank does not exercise any option within a period of fifteen days from the date of the option letter given for exercising the option, to be in the employment of the Transferee Bank, such officer or employee shall b e deemed to have accepted to continue in the service of the Transferee Bank. 13. The Transferee Bank, either through its Central Board or its Executive Committee, may given such directions as they may consider necessary to settle any questions or difficulty arising in relation to the meaning or interpretation of this Order, for due and complete implementation and for removing any difficulty as may arise in the course of implementation of this Order and other matters connected therewith.” 6. It is not in dispute that in furtherance to clause 7 and 8, the acquiring Bank floated the option letter vide Circular PER/No.17/10-11 dated 23-08-2010. The petitioner in pursuance thereto sought absorption and got absorbed with the State Bank of India. 7. That on acceptance of offer, various terms and conditions appended with the option letter dated 23-08-2010 became applicable both to the petitioner and the State Bank of India. To note the relevant one in the context of controversy in present case : “3. Pay and Allowances :- (a) The pay and allowances payable to the SBIN employees shall not be less than the overall pay and allowances as they would have drawn in SBIN, subject to the provisions of this annexure and the service conditions as may be made applicable to them from the effective date. (b) All SBIN Employees who are not eligible for allowance carrying position as per eligibility criteria in SBI but drawing allowances in SBIN, will continue to draw their present allowances as on the effective date or acquisition and they shall discharge their duties, roles/responsibilities and exercise powers as specified in the industry level bipartite settlement dated 27th April2010, for an equivalent quantum of allowance as in SBIN and any other duties/powers entrusted to them in SBIN. (c) Special Assistants/Head Cashiers-II/Single Window Operators 'C' in SBIN, shall be re-designated as' Additional Senior Assistants from the effective date. Single Window Operators 'B' will continue with their existing designation. (d) xxx xxx xxx xxx xxx xxx xxx (e) xxx xxx xxx xxx xxx xxx xxx (f) As and when such employees, as referred to in 3(b)above, fulfil the eligibility criteria for allowance carrying positions, as laid down for SBI employees, they shall draw the higher allowances, as applicable, as and when the next career progression exercise is carried out in SBI. The duties, roles/responsibilities and powers o be exercised, in such a case, will be as per relevant SBI settlements, from the date they become eligible for such higher allowances. (g) Posts attracting special pay as per industry level bipartite settlement dated 27th April, 2010, which are not available in State Bank of India, shall stand discontinued. Present incumbents in these posts shall continue to perform functions/duties attached to such posts. (g) Posts attracting special pay as per industry level bipartite settlement dated 27th April, 2010, which are not available in State Bank of India, shall stand discontinued. Present incumbents in these posts shall continue to perform functions/duties attached to such posts. Once such employees are promoted or are assigned duties of higher nature or retire or cease to be in service for any reason whatsoever or become eligible for in-cadre promotion as per the provisions of SBI, there shall not be any further appointment/entrustment to that post. (h) xxx xxx xxx xxx xxx xxx xxx (i) xxx xxx xxx xxx xxx xxx xxx (j) xxx xxx xxx xxx xxx xxx xxx (k) Career Progression/Redeployment/Transfer policy/allowances as well as roles, duties/responsibilities, as applicable to SBI employees shall be applicable to all SBIN employees, except as specifically mentioned elsewhere in these Terms and Conditions of service applicable to Award Staff. (l) xxx xxx xxx xxx xxx xxx xxx (m) xxx xxx xxx xxx xxx xxx xxx 8. When the matter stood thus, the respondents in furtherance to e-circular No. CDO/P&HRD/IR/105/2008-09dated 06-03-2009 and CDO/P&HRD/IR/53/2010-11 dated16-11-2010 and the powers conferred vide Government of India Notification dated 26-08-2010 and in terms of option letter empowering Central Board of State Bank of India or the ECCB to modify the terms and conditions and/or have power to lay down policy guidelines, to make rules/provide for the issues/subjects in respect of employees of State Bank of Indore, framed a scheme called “One Time Relaxation of Career Progression Scheme in respect of e-SBS and e-SBIN Employees who are now the Employees of SBI “2011-12”. The scheme is applicable only to the employees of State Bank of Saurastra and State Bank of Indore prior to the respective date of acquisition. It provided two fold options of career progression, viz., (a) if eligible for promotion to the post of Senior-Special Assistant, to accept promotion to Senior-Special Assistant or of Special Assistant; (b) if eligible for the post of Special Assistant, they may either accept the same or position of Senior Assistant. 9. It provided two fold options of career progression, viz., (a) if eligible for promotion to the post of Senior-Special Assistant, to accept promotion to Senior-Special Assistant or of Special Assistant; (b) if eligible for the post of Special Assistant, they may either accept the same or position of Senior Assistant. 9. The scheme besides other stipulation laid down vide clause (v) that : “If such employees refuse to accept that incadre promotion to the post of Senior-Special Assistant or Special Assistant or Senior Assistant offered in the current year or in future, the payment of special pay they were drawing as per e-SBIN/e-SBS norms will be stopped forthwith and they shall be treated as Assistants in SBI with attendant special pay and duties and responsibilities”. 10. It is this clause (v) whereby the petitioner is aggrieved of. It is contended that the scheme since offer in-cadre career progression as one time relaxation the petitioner cannot be compelled to accept the same merely because he is erstwhile employee of State Bank of Indore and a non opting under the scheme be not treated as a misconduct as would lead to stoppage of special pay which he was drawing and which was duly protected on absorption. It is further contended that there was no such term prescribed in the merger notification nor the terms of absorption as would empower the respondents under the garb of non acceptance of one time relaxation offer to withdraw the special pay. It is urged that having not accepted the in-cadre career progression, the respondents at most can stagnate the petitioner as Additional Senior Assistant. It is contended that stoppage of special pay for not opting to incadre career progression tantamount to punishment without any proven misconduct. It is asserted that the non opting for career progression is not a misconduct. 11. The respondents on their turn have defended clause (v) of one time relaxation of in-cadre career progression scheme. By way of preliminary objection filing of writ petition has been questioned on the ground that the petitioner being a workman without exhausting the remedy available under Industrial Disputes Act, 1947 is an abuse of process of law. The contentions are being noted to be rejected at the outset. As settled it is that an availability of an alternative remedy is not a bar to entertain a writ petition. 12. The contentions are being noted to be rejected at the outset. As settled it is that an availability of an alternative remedy is not a bar to entertain a writ petition. 12. It is further contended that since the position held by the petitioner before merger in State Bank of Indore was not available in the State Bank of India, stop gap arrangement was made by redesignating the personnels as Additional senior Assistants. 13. It is urged that in erstwhile State Bank of Indore inrespect of clerical staff, the special pay carrying positions were mostly as per the industry level bipartite settlement and interms of duties and responsibilities and quantum of allowances, those positions were much lower than special pay carrying positions in State Bank of India. Further, the in-cadre promotion to various allowance carrying positions in State Bank of Indore was based on number of vacancies in a particular branch/office, whereas such promotions in State Bank of India are based on the minimum service eligibility criteria. It is further contended that in State Bank of Indore there were special allowance carrying posts of Special Assistant, Head Cashier, Single Window Operator B and Single Window Operator C. Whereas in State Bank of India there are posts of Senior Assistant, Special Assistant and Senior-Special Assistant which carries special pay. It is contended that there is a vast difference in the nature of jobs/duties and responsibilities in the special pay carrying posts in the two Banks. The posts attracting special pay as per industry level bipartite settlement, dated 27-4-2010, are not available in State Bank of India and, therefore, as per clause 3 (f) of Annexure-C of circular, dated 23-08-2010 Annexure-R-3, as and when State Bank of Indore employees fulfill the eligibility criteria for allowance carrying positions, as laid down for State Bank of India employees, they are required to be posted/promoted on the special pay carrying positions of State Bank of India. The Bank is required to carry out career progression exercise in this regard. 14. It is urged that the duties, roles, responsibilities and powers to be exercised by the State Bank of Indore employees in such case, will be as per relevant State Bank of India settlement, from the date they become eligible for such higher allowances. 15. The Bank is required to carry out career progression exercise in this regard. 14. It is urged that the duties, roles, responsibilities and powers to be exercised by the State Bank of Indore employees in such case, will be as per relevant State Bank of India settlement, from the date they become eligible for such higher allowances. 15. It is further contended that because of vast difference of nature of jobs/duties and responsibilities of special pay carrying post in State Bank of Indore and erstwhile State Bank of India tendency crops up that whether an State Bank of Indore employee refuses to accept the promotion or higher responsibility by opting out the same. 16. It is urged that it is in order to curb this tendency imposed by State Bank of India employees, such stipulation as Clause (v) has been introduced in the scheme. 17. In the backdrop of these submissions respondents justify clause (v). 18. After considering the rival contentions the question which arises for consideration is as to whether the respondents having secured the pay and allowances of the employees of State Bank of Indore on their absorption in State Bank of India are justified in their action by stipulating a term in one time in-cadre progression scheme that in case such employee does not opt then they loose their special pay which has been duly protected. 19. Clauses 7, 8 and 13 of Notification dated 28.07.10 and the terms and conditions appended with option letter dated23.08.2010 in clear terms protects the over all pay and allowances which the employees of State Bank of Indore were drawing prior to their absorption. That, though the respondents are well within their right in redesignating the petitioner and the like as Senior Assistant and introducing an in-cadre career progression scheme as one time relaxation so that the absorbed employees get the opportunity to progress. However, introducing a provision that in case an option is not exercised by these employees the special pay drawn by them would be withdrawn is not incommensurate with the Amalgamation Scheme and the terms and conditions of absorption laid down thereon. That the withdrawal of special pay would in that case tantamount to reduction of pay and is punitive in nature which could be only when an employee commits misconduct. That the withdrawal of special pay would in that case tantamount to reduction of pay and is punitive in nature which could be only when an employee commits misconduct. Non exercise of option under a scheme, in the considered opinion of this Court, cannot be termed as disobedience as would attract penalty of withdrawal of special pay. The respondents have failed to show that the special pay granted to the petitioner at pre-merger stage was a conditional one that in future the incumbent will not refuse an option for in-cadre career progression. The contention by the respondents that non acceptance of in-cadre career progression tantamounts to shoulder higher responsibility therefore, the special pay granted is liable to be withdrawn is not tenable in view of the fact that the special pay is earned after rendering a service and is not a conditional incentive as could be withdrawn in future. 20. That as per the terms and condition of Amalgamation and Absorption the pay and allowance drawn on the date of amalgamation or absorption as the case may be protected and though the respondents could after higher pay and allowances as has been done by introducing one time relaxation in-cadre progression scheme but the stipulation that non exercise of auction would lead to withdrawal of special pay being contrary to the terms and condition of amalgamation and absorption is not tenable. 21. In view whereof, clause (v) as contained in one time relaxation of career progression scheme in respect of e-State Bank of Indore employees introduced on 7.10.11 and clause (d) of consequential letter dated 14.10.11 are hereby quashed. 22. In result petitioner would continue to draw the emolument and the special pay which he was drawing when absorbed in the service of State Bank of India, irrespective of he having refused to opt under One Time Relaxation of Career Progression Scheme. 23. Petition is allowed to the extent above. No costs.