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2014 DIGILAW 1124 (PAT)

Priyanka v. State Bank of India

2014-11-13

CHAKRADHARI SHARAN SINGH

body2014
CHAKRADHARI SHARAN SINGH, J.:–As all these writ applications filed under Article 226 of the Constitution of India are based on almost identical facts, relevant for adjudication of the disputes involved in these cases, and impugned orders of even dates having almost identical contents are under challenge, they are being disposed of by the present common judgement. 2. I have heard Mr. Y. V. Giri, learned senior counsel, Mr. Vivek Prasad, learned counsel, appearing on behalf of the petitioners and Mr. Kaushlendra Kumar Sinha assisted by Mr. Sunil Kumar Singh for the respondents-State Bank of India at length. Since the pleadings are complete and parties have been heard at length, with the consent of the parties, these applications are being disposed of by the present common judgement. 3. Orders dated 31.08.2013 issued by General Manager (NW-III) are under challenge in all the applications issued to the respective petitioners which have the effect of terminating the petitioners from Bank’s service as they have not been found fit for being confirmed under the grade of officer JMGS-I as they failed to perform satisfactorily in the Functional Knowledge Test/ re-test held on 14.07.2013 despite such opportunity given to the petitioners by the Bank, as per the confirmation policy which I shall refer to in detail herein below. An officer on probation was required to score a minimum of 50% marks out of 200 in order that he might be confirmed. The petitioner of CWJC No. 24284 of 2013 (Priyanka Kumari) scored 95.5 out of 2000 whereas petitioner of CWJC No. 24483 of 2013 scored 67 marks and petitioner of CWJC No. 24324 of 2013 (Anish Kumar) scored 87 marks. 4. Facts of all these cases are identical with only exception in case of CWJC No. 24284 of 2013 that she was selected for being appointed as Probationary Officer on the basis of an advertisement published on 01.07.2008 whereas petitioners of two other cases were selected on the basis of advertisement published on 30.01.2010. For the purpose of adjudication of the present cases, pleadings of CWJC No. 24284 of 2013 are being referred to in the present judgement and slight variance of the fact of this case with other cases shall be dealt with at appropriate place. 5. For the purpose of adjudication of the present cases, pleadings of CWJC No. 24284 of 2013 are being referred to in the present judgement and slight variance of the fact of this case with other cases shall be dealt with at appropriate place. 5. The petitioner of CWJC No. 24284 of 2013 had applied for appointment as Probationary Officer in State Bank of India pursuant to an advertisement dated 01.07.2008 inviting applications for the said purpose. Clause-7 of the advertisement contained inter alia the following:– “ 7.The Probationary Officers will be on a probation of two years during which they will be given intensive training and towards end of their probation/ training period they will be subjected to a screening process. While those Probationary Officers who achieve the pre-determined standards may be confirmed and given placement in the next higher grade i.e. Officer Middle Management Grade Scale II, others who qualify the test but fail to achieve the standards set for placement, in Middle Management Grade Scale II, will be confirmed as Officer Junior Management Grade I. The services of those Probationary Officers who fail to qualify this process may be terminated.” 6. She was selected for the post and by a letter dated 04.05.2009 (annexure-2) she was asked to submit joining on 15.05.2009. Clause 7 of the said communication, however, provided that if she was not able to join the Bank by 15.05.2009 she might apply to AGM (HR), Local Head Office, Patna for permission to join by 12.06.2009 or join with next batch of Probationary Officers citing valid and acceptable reasons. The petitioner sought permission to join with next batch of Probationary Officers which was accepted and she was communicated in this regard by a letter dated 26.05.2009. The petitioner was earlier working as an Assistant Manager in Indian Overseas Bank where she had resigned for the purpose of submitting her joining in State Bank of India. Her resignation was accepted and she was relieved from the Indian Overseas Bank on 31.01.2011. The petitioner was issued an appointment letter dated 19.02.2011 for her joining as Probationary Officer in the State Bank of India with the subsequent batch. As the common date of joining for all Probationary Officers of the subsequent batch was fixed on 01.03.2011, the petitioner was asked to report on that date. The petitioner was issued an appointment letter dated 19.02.2011 for her joining as Probationary Officer in the State Bank of India with the subsequent batch. As the common date of joining for all Probationary Officers of the subsequent batch was fixed on 01.03.2011, the petitioner was asked to report on that date. Paragraph 5 of the said letter dated 19.02.2011, being offer of appointment, reads thus:– “5. You will be on probation for a period of two years from the date of appointment. Your confirmation in the Bank shall be subject to: a) satisfactory reports from our own sources as well as from District/ Police authorities regarding your character and antecedents. b) Satisfactory completion of the in-service training during probation. c) satisfactory performance in the evaluation/ confirmation tests to be conducted by the Bank during the probation period. Unsatisfactory performance in the evaluation/ confirmation tests will be dealt with as per the guidelines/ instructions of the Bank in force at the time of conducting evaluation/ confirmation Tests.” Petitioner submitted her joining, accordingly. 7. So far as petitioners of other cases are concerned, as has been noted above, they were applicants pursuant to an advertisement dated 30.01.2010 and in their favour appointment letters were also issued on 19.02.2011 which contained similar conditions as paragraph 5, as noted above. They had also joined on 01.03.2011. All the three petitioners were put on probation/ training for two years for the purpose of considering their confirmation in JMGS-I on completion of probation/ training of two years, test of Functional Knowledge Test were administered upon them on 09.12.2012. They, however, could not score the minimum qualifying marks for confirmation as they scored less marks in the Functional Knowledge Test, their probation/ training was extended in terms of Rule 16(2) of the State Bank of India Officers Service Rules to a period of six months up to 31.08.2013. They were given another opportunity to clear the Functional Knowledge Test and a re-test was held on 14.07.2013 and in the re-test the petitioner, Priyanka Kumari scored 95.5 marks whereas the petitioner Amod Kumar scored 66 marks and the petitioner Anish Kumar scored 87 marks out of 200. They were given another opportunity to clear the Functional Knowledge Test and a re-test was held on 14.07.2013 and in the re-test the petitioner, Priyanka Kumari scored 95.5 marks whereas the petitioner Amod Kumar scored 66 marks and the petitioner Anish Kumar scored 87 marks out of 200. As they had failed to score minimum qualifying marks of 50% out of 200, the respondents-State Bank of India by the impugned order dated 31.08.2013, passed separately with respect to these petitioners, terminated them from Bank’s service in terms of the offer of appointment and provisions of Rule 16(3) of State Bank of India Officers Service Rules holding further that they will be entitled for payment of one month emoluments in lieu of one month notice in terms of Rules 16(3)(a) of State Bank of India Officers Service Rules. 8. In order to assail the impugned decision of the State Bank of India the petitioners have placed reliance upon the policy for confirmation/ placement in MMGS-II. The said policy was applicable to 2009-10 batch of officers who were due for confirmation as on 15.05.2011 for which the written test was to be held on 27.02.2011. Much reliance has been placed upon the said policy to make out a case that it was incumbent upon the Bank to have granted the petitioners three attempts for clearing the required test. A plea has been taken on behalf of the Bank in response to the said plea, and rightly so, that the said confirmation policy dated 07.02.2011 was confined to officers who were due for confirmation on 15.05.2011 and the cases of the petitioners were governed by a subsequent circular dated 09.06.2011 which has been brought on record as annexure-6 to CWJC No. 24483of 2013. The petitioners have questioned the subsequent circular containing policy for confirmation of Probationary Officers asserting that for the first time 50% (45% for Scheduled Caste/ Scheduled Tribe categories/Scheduled Tribe & PWD) was prescribed for confirmation in JMGS-I which condition was not there in the advertisement. 9. Mr. The petitioners have questioned the subsequent circular containing policy for confirmation of Probationary Officers asserting that for the first time 50% (45% for Scheduled Caste/ Scheduled Tribe categories/Scheduled Tribe & PWD) was prescribed for confirmation in JMGS-I which condition was not there in the advertisement. 9. Mr. Y. V. Giri, learned senior counsel appearing on behalf of the petitioners has strenuously contended that in the absence of stipulation in the advertisement itself inviting applications for appointment that upon selection the candidates will be required to score a fixed percentage of marks in written test to be conducted for the purpose of being confirmed on completion of probation, it was impermissible for the Bank to have imposed such condition subsequent to joining of these petitioners as Probationary Officers in the Bank. He has further contended that policy of confirmation of Probationary Officers in the form as they existing at the time of joining of these petitioners should not have been applied in cases of these petitioners as the Executive Committee of Central Board of State Bank of India should not have changed the said policy subsequent to joining of these petitioners. He submits that petitioners had changed their status in terms of offer of appointment given to them keeping in mind the confirmation policy of the State Bank of India as existing on the date of their joining. He submits that more stringent conditions should not have been imposed by the Bank for the purpose of confirmation of the petitioners after submission of their joining than the conditions, which were existing on the date of their joining. With particular reference to petitioner of CWJC No. 24284 of 2013, Mr. Giri, learned senior counsel appearing on behalf of the petitioners has contended that she had cleared the recruitment test earlier but she had joined along with subsequent batch and, therefore, the policy of confirmation as was applicable to the Probationary Officers of the previous batch should have been made applicable in her case as her joining along with successful candidates of subsequent batch is immaterial. He has submitted that case of petitioner of CWJC No. 24284 of 2013 ought to have been considered accordingly by the Bank. He has submitted that case of petitioner of CWJC No. 24284 of 2013 ought to have been considered accordingly by the Bank. He also argued with equal vehemence that the State Bank of India out not to have held the required Functional Knowledge Test/ re-test as during the said period she was in family way which fact was known to the officials of the Bank. He has contended that she could not perform well because of adverse physical conditions though she had the potential to clear the test. He has lastly argued that it will be too harsh for the petitioners to be terminated from Bank’s service at this stage for the reason for which they are being terminated and has contended that they should be given at least one more chance to appear in Functional Knowledge Test. Referring to the case of petitioner of CWJC No. 24284 of 2013 he has contended that she came to join State Bank of India after submitting her resignation as Probationary Officer in Indian Overseas Bank under the hope of a better prospect. He submits that the very fact that she was working as an officer in Indian Overseas Bank and can be selected for appointment as Probationary Officer in State Bank of India is sufficient to indicate that she is a bright enterprising women and her entire career will be ruined if the impugned decision of the Bank is allowed to sustain. 10. A counter affidavit has been filed on behalf of the respondents-State Bank of India. The facts are not in much dispute than what has been stated in the writ applications. It has been stated in paragraph 14 of the counter affidavit that the respondent-Bank had formulated a policy for confirmation/ placement in MMGS-II pertaining to Probationary Officers whose written test was scheduled to be held on 27.02.2011 and they were due for confirmation on 15.05.2011. It was clearly laid down therein that the process was being adopted for screening the Probationary Officers of 2008-09 batches. It has been asserted that subsequently the said confirmation policy was changed for confirmation of Probationary Officers and trainee officers for 2009 batch onwards in which it was stipulated that first confirmation test would be conducted after 18 months of probation and confirmation test will be extended by six months of those Probationary Officers who failed in the confirmation test. It has been asserted that subsequently the said confirmation policy was changed for confirmation of Probationary Officers and trainee officers for 2009 batch onwards in which it was stipulated that first confirmation test would be conducted after 18 months of probation and confirmation test will be extended by six months of those Probationary Officers who failed in the confirmation test. The respondent-Bank has brought on record the communications to the petitioners of even date, i.e., 01.03.2013 whereby it was decided to extent their probation for a period of six months in terms of Rule 16(2) of the State Bank of India Officers Service Rules and to give another chance to write a confirmation re-test. In paragraph 3 of the said communication, it was specifically mentioned as follows:– “…. …….. in case of you fail to score 50% or more marks (45% in case of SC/ST and PWD candidates) in the re-test the, Bank will be constrained to terminate your services without any further notice, in terms of policy circulated vide Corporate Centre E Circular No. CDO/ P&-HRD-CM/30/2011-12 dated 19.06.2011, which may please be noted.” 11. Referring to the said part of the communication, the Bank has placed reliance upon an order of the Delhi High Court passed in similar circumstance in WRIT PETITION (Civil) No. 2034/2013 dated 03.09.2013. 12. Mr. Kaushlendra Kumar Sinha, learned counsel appearing on behalf of the State Bank of India, in reply to the submission made on behalf of the petitioners has placed reliance upon clause-7 of the advertisement inviting applications wherein it was specifically mentioned that services of those Probationary Officers who failed to qualify the process of confirmation will be terminated. Referring to Rule 16(2) of the State Bank of India Officers Services Rules, 1992 Mr. Sinha has contended that the said rule enables the competent authority to extend the period of probation “not exceeding one year”. He has contended that up to six months period the probation could be extended if an officer failed to satisfactorily complete the training required for confirmation. He has submitted that exercising power under Rule 16(2) of the said Rules confirmation policy was framed by the Executive Committee of Central Board of the Bank in its meeting held on 12.05.2011. He has contended that up to six months period the probation could be extended if an officer failed to satisfactorily complete the training required for confirmation. He has submitted that exercising power under Rule 16(2) of the said Rules confirmation policy was framed by the Executive Committee of Central Board of the Bank in its meeting held on 12.05.2011. He has further contended that as the petitioners failed to score minimum qualifying marks in the first test held for confirmation of their services in the Bank, by a letter dated 01.03.2013 their probation period was extended and they were given another chance to write a confirmation re-test and in the said letter it was specifically mentioned that in case the petitioners failed to score 50% or more marks in the re-test the Bank would be constrained to terminate their services without any further notice in terms of the policy circulated vide Corporate Central E Circular dated 09.06.2011 (supra). He contends that the petitioners never questioned the legality of the confirmation policy of the Bank as communicated in the said circular dated 09.06.2011 rather they participated in the confirmation process in accordance with the said circular. According to him, despite there being specifically mentioned in the letter dated 01.03.2013 (annexure-B) that the Bank would terminate their services if they failed to qualify in the confirmation re-test, the petitioners did not raise any grievance and they participated in the test. He contends that once they participated in the conformation re-test, they are now stopped from raising any plea against the confirmation policy or the stipulation in the letter dated 01.03.2013 extending their probation and asking them to appear in re-test after they were found unsuccessful in the said re-test. He has placed reliance upon a judgement of the Supreme Court in case of Manish Kumar Shahi Vs. the State of Bihar reported in (2010) 12 SCC 576 . He has also placed reliance upon another judgement of the Supreme Court in case of Rajya Sabha Secretariat Vs. He has placed reliance upon a judgement of the Supreme Court in case of Manish Kumar Shahi Vs. the State of Bihar reported in (2010) 12 SCC 576 . He has also placed reliance upon another judgement of the Supreme Court in case of Rajya Sabha Secretariat Vs. Subash Baloda reported in (2013) 5 SCC 169 and has contended that it would not be desirable for this court in a proceeding under Article 226 of the Constitution of India, while exercising power of judicial review, to interfere with the policy decision of the Bank for confirming the services of Probationary Officers which have been uniformly applied to all officers and such policy cannot be said to be in violation of any constitutional or statutory requirement. He has submitted that there has been no lack of fairness on the part of the Bank officials while laying down the policy for confirmation of Probationary Officers nor there is any plea that the petitioners have been discriminated against by giving different treatment by the Bank to similarly situated persons. 13. Coming to rival submissions made on behalf of the parties, it appears to me that plea on behalf of the petitioner of CWJC No. 24284 of 2013 that no confirmation test or re-test ought to have been conducted as she was in family way cannot be accepted. I presume that Mr. Giri, learned senior counsel appearing on behalf of the petitioners, was not serious while raising this plea as vehemently he put forth in course of argument. The test was being held nation wide. The petitioner did not have nor did she raise any objection against the test in which she participated and, therefore, such submission is rejected. His plea with respect to the same petitioner that her case ought to have been considered under the scheme applicable to Probationary Officers of the previous batch along with whom the petitioner has qualified has also no force. In my view, the appointment letter will govern the service condition of the petitioner. Paragraph 6 of which read that her service in the Bank will be governed by the State Bank of India Officers Rules, 1992 as amended from time to time as well as the instructions/ guidelines issued under the Rules and Regulations framed by the Bank from time to time. Paragraph 6 of which read that her service in the Bank will be governed by the State Bank of India Officers Rules, 1992 as amended from time to time as well as the instructions/ guidelines issued under the Rules and Regulations framed by the Bank from time to time. The petitioner joined with the next batch of Probationary Officers consequent upon her selection on the basis of the advertisement dated 01.07.2008. The confirmation policy upon reliance has been placed on behalf of the petitioner was meant for only such Probationary Officers who were due for confirmation as on 15.05.2011. Learned counsel for the Bank in my view is correct in his submission that the policy was confined to such officers only who were due for confirmation as on 15.05.2011 and could not have been applied in case of petitioner of CWJC No. 24284 of 2013 as she was appointed on 01.03.2011 and her service was not due for confirmation on 15.05.2011. 14. It has been contended on behalf of the petitioners that they were required to confirm within two years of their appointment and, therefore, the confirmation test ought to have been taken on completion of two years and according to them the Functional Knowledge Test was held on 09.12.2012, much before completion of two years in Bank’s service. The submission has been made to be rejected. The petitioners were required to successfully complete the probation within two years and that included passing the Functional Knowledge Test within the said period. There is no dispute about the fact that their probation period was extended beyond two years up to 31.08.2013 within which time they were given an opportunity to participate in the confirmation re-test. 15. Mr. Sinha appearing on behalf of the respondent-Bank appears to be right in his submission while placing reliance upon judgement of Supreme Court in case of Manish Kumar Shahi (supra) that after having participated in the process of confirmation test/ re-test it was not open for the petitioners to challenge the policy decision under which the test were conducted. The principle has been laid down and has been subsequently reiterated by the Supreme Court in case of Madan Lal Vs. State of J & K reported in (1995) 3 SCC 486 , Marripati Nagaraja Vs. State of Andhra Pradesh reported in (2007) 11 SCC 522 , Dhanjay Malik Vs. The principle has been laid down and has been subsequently reiterated by the Supreme Court in case of Madan Lal Vs. State of J & K reported in (1995) 3 SCC 486 , Marripati Nagaraja Vs. State of Andhra Pradesh reported in (2007) 11 SCC 522 , Dhanjay Malik Vs. State of Uttranchal reported in (2008) 4 SCC 171 , Amlan Jyoti Barua Vs. State of Assam reported in (2009) 3 SCC 227 and K. A. Nagamani Vs. Indian Air Lines reported in (2009) 5 SCC 515 . After having participated in the confirmation test/re-test for the purpose of confirmation in Bank’s service with clear stipulation that if they failed in re-test, the Bank would be constrained to terminate them from service, now the petitioners are disentitled from raising any plea against confirmation policy of the Bank or the condition laid down in the letter dated 01.03.2013 by which they were given opportunity to appear in the confirmation re-test. 16. By way of last recourse, learned senior counsel appearing on behalf of the petitioners has submitted that the Bank should, in the facts and circumstances of the case, take sympathetic attitude towards these petitioners whose careers are at stake at this juncture and relax the minimum qualifying marks. A supplementary affidavit to this effect has been filed by the petitioners stating that the Bank reduced the minimum qualifying marks for confirmation in scale-II of Probationary Officers of 2011 batch and Probationary Officers of 2010 batch from 75% to 60% and those officers have been confirmed in class-II deriving benefit out of such relaxation. 17. Replying to this aspect a plea has been taken on behalf of the Bank that the cases of these petitioners related to the question of their confirmation in Bank’s service upon failure to score minimum qualifying marks in the confirmation test whereas the cases in which the Bank decided to relax the minimum qualifying marks from 75% to 60% related to confirmation of officers in scale-II which was done in order to maintain merit and seniority channel vacancies in the ratio of 80:20. 18. In view of observations as above, I find no merit in the submission made on behalf of the petitioners that they had any legal right to continue as officers in the Bank despite their failure to score the minimum qualifying marks. 18. In view of observations as above, I find no merit in the submission made on behalf of the petitioners that they had any legal right to continue as officers in the Bank despite their failure to score the minimum qualifying marks. I am, therefore, not inclined to issue any writ/ direction/ order in any nature in favour of the petitioners granting any relief. In the background of the cases, I am conscious of the decision of the Delhi High Court also dated 03.09.2013 dealing with an identical situation where the High Court held in paragraph 6 as follows:— “6. In my opinion, respondent No.1 is justified in arguing on the basis of the principle of estoppel relying on the letter dated 13.05.2011 inasmuch as, admittedly the petitioner pursuant to this letter dated 13.05.2011, took benefit of the extended period of probation. Once the petitioner has taken the benefit of the letter dated 13.05.2011 by getting an extended period of probation, petitioner is bound by the conditions stated in the letter dated 13.05.2011 that no further test i.e. a further third test would not be given to the petitioner. Therefore, petitioner is not justified in contending that he should have been given the third test. I may state that if what the petitioner argued for the third test was on the basis of statutory provisions with respect to respondent No.1, then position may have been different, however, the original appointment terms are contractual, and therefore, I do not find any illegality in the respondent No.1 in not granting a third test in terms of the letter dated 13.05.2011 and which has been acted upon by both the parties. I may also note that it is not the case of the petitioner that there is any discrimination against him on the ground that some other persons have been granted the third opportunity but the petitioner has not been granted the third opportunity.” 19. I thus find no merit in the present batch of the writ applications. However, in the facts and circumstances of the case, I would just observe that this order will not come in the way to the competent authority of the Bank to consider whether one more chance can be given to these petitioners for qualifying the confirmation test to score minimum qualifying marks as prescribed. However, in the facts and circumstances of the case, I would just observe that this order will not come in the way to the competent authority of the Bank to consider whether one more chance can be given to these petitioners for qualifying the confirmation test to score minimum qualifying marks as prescribed. It is made clear that failure of these petitioners to clear the confirmation test will not be taken to be a stigma for consideration of their cases for any public employment or under the public sector undertakings in future. In the result, these writ applications are dismissed with the observation, as above. There shall be no order as to costs. ?