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2014 DIGILAW 1210 (CAL)

Srikanta Baidya v. IDBI Bank Limited

2014-12-24

SAMBUDDHA CHAKRABARTI

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JUDGMENT : Sambuddha Chakrabarti, J. By the present writ petition the petitioner has, inter alia, prayed for a writ in the nature of mandamus directing the respondents to pay all the financial benefits which he would have been entitled to had he been granted successive promotions from July 2002 onwards, a writ in the nature of prohibition, prohibiting the respondents from withholding the first promotion of the petitioner from July 2002 and the successive other promotions, and for other reliefs. 2. The case of the petitioner in short is that when he was working at the IDBI Ltd. which had since been converted to IDBI Bank Ltd. he had been subjected to harassment and humiliation and had been successively deprived of his promotion. Under the scheme of amalgamation of IDBI Ltd. with IDBI Bank Ltd., under Clause 2.11 a protection had been stipulated, inter alia, to the effect that all employees of the transferor bank in service on the effective date shall become employees of the transferee bank on such date without any break or interruption in service and on emoluments, benefits and terms and conditions of service which were not less favourable than those subsisting in the transferor bank. The petitioner who belongs to the Scheduled Caste community, alleges that the promotional exercises conducted by the respondents authorities have been in violation of the said clause. 3. The petitioner has been superceded by at least 2145 junior employees in the rank of Manager and by 787 juniors to the rank of Assistant General Manager. Due to arbitrary actions taken by the respondents, his juniors had been promoted to act as his Reporting Officers and Reviewing Officers. 4. On March 23, 1998, the petitioner was promoted to the post of Assistant Manager (A). Subsequently, on December 27, 2000, personal promotion to certain incumbents had been granted and a large number of employees juniors to the petitioner had been granted promotion. On January 05, 2005, Special Recruitment Drive for SCs and STs for different posts in the cadre of officers had been made. By an office circular, dated January 20, 2005, it had been decided to extend the policy of calling number of freshers for interview for filling up the vacancies in the Grade 'D' thrice the number of estimated vacancies as against the existing 1.5 times. By an office circular, dated January 20, 2005, it had been decided to extend the policy of calling number of freshers for interview for filling up the vacancies in the Grade 'D' thrice the number of estimated vacancies as against the existing 1.5 times. However, for promotion to other grades the existing policy of calling fresh candidates in the multiple of 1.5 times of the estimated vacancies still continued. 5. On November 02, 2006, the promotion policy of the IDBI Bank in respect of the Group 'A' employees was promulgated where concession to SC/ST officers for promotion to 'B' and 'C' Grades had been stipulated. Although the petitioner had been granted personal promotion on March 17, 2007 by a subsequent office order dated July 27, 2007 a good number of employees who were admittedly juniors to the petitioner were promoted. On September 02, 2009, the promotional policy of the officers association had been promulgated. No reservation for the SC/ST for promotion in the officer cadre had been kept if the promotion was by a selection process. According to the petitioner due to supersession for a long time he has been made to suffer a huge amount of monetary compensation of about 50 lakhs apart from harassment and humiliation. On October 14, 2010, he was informed to have obtained a low rating from the Reporting or Reviewing officer which was considered a disqualification for being called for promotion to the next grade. 6. Clause 13.01 of the office order, dated June 21, 2011, of the concerned bank revealed that seniority had been made the criteria for promotion in the case of the SC or ST candidates, if not otherwise unfit for promotion. It was further provided in the said office order that candidates securing less than minimum qualifying marks and having an adverse remarks in the service records would be declared unfit for promotion. The petitioner was again informed that his average score was less than 3 which was a disqualification for being called for promotion. The petitioner made representations to different authorities making grievance that the authorities had not adhered to the directive of he Supreme Court and that he had been stagnated in the same cadre for more than 14 years despite there being an automatic promotion of the officers of the middle management cadre belonging to the SC and ST categories. 7. The petitioner made representations to different authorities making grievance that the authorities had not adhered to the directive of he Supreme Court and that he had been stagnated in the same cadre for more than 14 years despite there being an automatic promotion of the officers of the middle management cadre belonging to the SC and ST categories. 7. The writ petition gives details of various communications and representations made by the petitioner ventilating his grievances to different authorities and the replies that he had received from them. He also made an application under the Right to Information Act seeking certain information which had ultimately been supplied to him. The petitioner has criticized the Performance Appraisal Report (PAR, for short) and alleged that the observations and remarks made therein were neither trustworthy nor bona fide. He has being surprised by the remarks like 'lacking initiative', 'Zero performance' or 'enhancement of ability need exposures'. 8. The petitioner has assailed the acts of the respondents in denying promotion in successive promotional exercises to be mala fide and opposed to all norms of procedure and natural justice. According to him, the system of rating the performance of appraisal was arbitrary and erroneous. Despite his requests the authorities had not supplied the vital information relating to his supersession. The petitioner being a scheduled caste was entitled to certain defined concessions which had not been granted to him. Thus, he has filed the present writ petition praying for the reliefs which have not been mentioned before. 9. It has been the contention of the respondent bank that it has its employees form the erstwhile IDBI Ltd., erstwhile IDBI Bank Ltd. and erstwhile United Western Bank. The present promotion policy of the respondent bank was strictly according to the guidelines, directive and instructions laid down by the Government of India. The bank implements or modifies the policy from time to time as per the Government of India guidelines and as applicable in the matter of reservations and concessions of Scheduled Caste and Scheduled Tribe candidates. In terms of the Government of India guidelines there is no reservation for Scheduled Caste and Scheduled Tribes candidates with regard to promotion in the officer's cadre which is effected through a selection process. 10. In terms of the Government of India guidelines there is no reservation for Scheduled Caste and Scheduled Tribes candidates with regard to promotion in the officer's cadre which is effected through a selection process. 10. According to the respondents, reservation for Scheduled Caste and Scheduled Tribe candidates for promotions form Grade 'A' to Grade 'B' and Grade 'B' to Grade 'C' in the concerned bank are judged by relaxed standard by giving additional grace marks in the interview which was five per cent. till the year 2002 and subsequently increased to 10 per cent. In the year 2003. In the year 2008, the promotion policy in the bank was amended providing concession to the SC/ST candidates i.e., a provision was made for the SC/ST candidates who are senior enough in the zone of consideration for promotion so as to within the select list, were to be promoted, provided they were not considered unfit for promotion by the concerned committee. The bank authorities have asserted that promotion to Grade 'B' and Grade 'C' cadre provides for determining the fit or unfit criteria based on written tests, professional qualifications and interview performance. 11. In order to ensure transparency and fairness, the bank appoints a senior officer belonging to the SC/ST category as Chief Liaison Officer of SC/ST employees. In addition, a senior SC/ST officer is invariably made a member of every selection committee for promotions. The respondent bank has a significant number of officers at all levels of management who belongs to the SC/ST and promoted through the existing promotional policy. The promotional policy provides for various parameters including achieving cut off marks for being considered eligible in written tests and interview performance for lower level officers and interview performance for higher grades. 12. The respondent bank extends concessions to the ST and SC officers for promotion upto Grade 'B' (Manager) and Grade 'C' (Assistant General Manager). There is no reservation for promotion within the officer's cadre whenever the promotion is by selection process. However, for promotion upto Grade 'B' and Grade 'C', SC/ST officers who are senior enough in the zone of consideration for promotion are promoted provided they are considered fit enough for promotion by the Promotion Selection Committee. There is no reservation for promotion within the officer's cadre whenever the promotion is by selection process. However, for promotion upto Grade 'B' and Grade 'C', SC/ST officers who are senior enough in the zone of consideration for promotion are promoted provided they are considered fit enough for promotion by the Promotion Selection Committee. The select list is prepared to include all officers who qualify in terms of service eligibility criteria and have secured the minimum qualifying marks in the PAR which is thee out of five points. All candidates securing less than the qualifying marks and having adverse remarks in the PAR or service records are declared unfit for promotion. The officers coming within the zone of consideration will then be arranged in the order of inter se seniority and any SC/ST candidates falling within the number of vacancies earmarked for the channel of promotion would be included in the selection list without subjecting them to the interview. 13. The respondents have contended that the promotional policy followed by the concerned bank is neither in breach of the guidelines issued by the Government of India nor is against the rule laid down by the Supreme Court. There is no reason for the Reporting Officer and the Reviewing Officers to harbour any ill-will or bias against the petitioner. The petitioner also has not alleged any personal bias against them. The criteria of the respondent no. 1, bank for promotion are sustained performance, potential and combination of seniority-cum-merit. 14. The petitioner had joined the respondent bank in clerical cadre and was promoted to the Assistant General Manager Grade (A) in the year 1998. For such promotion five per cent. relaxation of the qualifying marks for the written tests was extended to him as he belongs to the SC category. He was called for promotion to Grade B (Manager) six times form the year 2002-03 to 2007-08 after fulfilling the service criteria. As per the bank's policy the eligible candidates have to appear before the selection committee for judging their suitability for promotion to higher grade. Every year the selection committee interviewed the petitioner and found him unsuitable for promotion to the higher grade. The petitioner was given additional grace marks in terms of the existing promotional policy. 15. The petitioner was found eligible for Personal Promotional Scheme with effect from November 02, 2006. Every year the selection committee interviewed the petitioner and found him unsuitable for promotion to the higher grade. The petitioner was given additional grace marks in terms of the existing promotional policy. 15. The petitioner was found eligible for Personal Promotional Scheme with effect from November 02, 2006. The Assured Personal Promotional Scheme provides that officers who are stagnated in Grade A or Grade B for more than five years are eligible for personal promotion and all attended benefits, scales of pay, as applicable to Grade B, are extended on fulfilling all other criteria laid down by the respondent bank. The respondents have given the rating and remarks received by the petitioner for the last five years in a tabular form. He was always consulted by the Reporting and Reviewing officers regarding poor attitude towards his work and discipline. He has been consistently judged as incapable of shouldering higher responsibilities and has not secured the minimum qualifying marks in the PARs. Therefore, he was declared unfit for promotion and thus excluded from the process. 16. In the affidavit in reply the petitioner has largely reiterated the stand taken by him in the writ petition. He had further alleged that the respondents had failed to understand the basic grievance of the petitioner. It is stated that the challenges made in the writ petition are those that in the successive promotional processes he has wrongly been ousted by the authority although he had acquired eligibility for moving to the scales of Grade C with the pre-requisites of benefits available to the Grade C officers. It has further been alleged that he has not been allowed to come in the zone of consideration. According to him, he had not even been issued a call for sitting in the written examination or to appear in the interview after the year 2008. He further alleges that there is no qualitative or quantitative difference between jobs to be rendered by two grades of officers. All of them perform the same and similar nature of duties. 17. Since the petitioner has put in several years of service with the IDBI Bank it is not understood how a new incumbent will perform better. He alleges that he had been made a victim of the caprices and vagaries of the bank authorities of which the court may take judicial notice. 17. Since the petitioner has put in several years of service with the IDBI Bank it is not understood how a new incumbent will perform better. He alleges that he had been made a victim of the caprices and vagaries of the bank authorities of which the court may take judicial notice. The petitioner has denied the contention of the respondents that he failed in all the six attempts but alleged that he had made to fail in his six attempts. He has expressed surprise that the employees of the bank who joined long after the petitioner have been found by the series of the departmental committees to be more efficient than him. As a result of this he was subjected to enormous humiliation and oppression only because of the reason of the arbitrariness on the part of the respondents and it has also resulted in casting a social stigma. He has raised a further point that since the employees who had superseded him are discharging the same, similar and identical nature of work, the petitioner should also have given a promotion. 18. Mr. Dutta, the learned Advocate for the petitioner has strenuously argued that the petitioner who belongs to the SC community has been deprived promotional benefits in spite of the specific directive issued by the Supreme Court in the case of National Federation of State Bank of India v. Union of India and Others, reported in AIR 1995 SC 1475. In different paragraphs of this judgment the Supreme Court had held that in the matter of promotion to selection post within a class which carries an ultimate salary of Rs. 2250/- per month or less there is no reservation in favour of the SC and ST candidates. But they are entitled to the concession contained in paragraph 2 of the office memorandum, dated March 26, 1970. According to Mr. Dutta, the Supreme Court has laid down that the number of candidates who are to be considered should be thrice the number of vacancies. If any SC/ST officer happened to fall in the serial number of one to twenty they shall be included in the select list without any further ado. A comparison of the annual PARs from the year 1998 to 2001 would reveal that there was nothing adverse against him during this period and as such he was eligible to come into the zone of consideration. A comparison of the annual PARs from the year 1998 to 2001 would reveal that there was nothing adverse against him during this period and as such he was eligible to come into the zone of consideration. His performance up to 2008 was appreciably good. According to the petitioner from 2008 onwards the authority started giving unusual appraisal in spite of his performing to the best of his ability. 19. Mr. Dutta further argued that the respondents have acted in total derogation of the office memorandum dated June 07, 2013 which provided that promotion by selection for posts within Group A the SC and ST officers who are senior enough in the zone of consideration for promotion would be included in the list provided they are not considered unfit. According to the petitioner he has not been granted promotion only because he has come from the IDBI Bank and there was a necessity to accommodate employees from the United Western Bank. The petitioner, therefore, claims that he is entitled to compensation with retrospective effect and consequential benefits of salaries and allowances in all grades from the year 2002 with interests. 20. I have perused the petition, affidavits and considered the merits of the respective cases. 21. Great emphasis has been laid by the petitioner on the case of National Federation of State Bank of India and others (Supra) wherein the Supreme Court had held that the matter of promotion there is no reservation in favour of SC and ST candidates but they are entitled to some concessions which, according to the respondents is that these officers who are seniors in the zone of consideration of promotion so as to come within the number of vacancies will be included in the select list provided that they are not considered unfit for promotion. The Supreme Court had categorically held that the position of such candidates in the select list, however, would be the same as is assigned to them by the Departmental Promotion Committee on the basis of their record of service. The said candidates would not be entitled, for the purpose of the said selection, one grading higher than the grading otherwise assignable to them on the basis of their record of service. 22. The said candidates would not be entitled, for the purpose of the said selection, one grading higher than the grading otherwise assignable to them on the basis of their record of service. 22. I quite appreciate the stand taken by the respondent bank that since the petitioner has not been able to show any personal bias against him by the Reviewing Officers the performance must be held to have been done judging the petitioner's quality of performance. The appraisal measures the skills and accomplishments uniformly and it helps the employer to identify the areas of performance enhancement to design training for further development of schemes and trends for the promotion of professional growth. In view of a poor appraisal report for the successive years the petitioner was not considered fit for promotion to the next higher grade. Notwithstanding the petitioner's repeated insistence that the employees who had already been promoted have been doing the same work which they were doing at the lower grade the fact remains that promotion always carries with it a better skill to be discharged by an employee at a higher level than the current one, and therefore, while considering the promotion of a candidate the authority always considers whether the incumbent is suitable for discharging the responsibilities and functions at a higher level. This is based on his track record at the existing grade and his sustained performance. It is the performance and the ability to produce the output on which the suitability of a candidate for the promotional posts is considered. 23. An employee has no right to be promoted as of right. He has merely the right to be considered for promotion. In the case of Ram Ashish Dixit v. Chairman, Purbanchal Grmin Bank Ltd. & Another, reported in (2013) 6 SCC 309 , the Supreme Court had reiterated the settled proposition of law and held that appellant did not have any right to be promoted automatically on completion on minimum length of service. He had to be declared suitable for promotion on the criteria applicable. 24. Mr. Ghosh, the learned advocate for the respondents further submitted that as per the present promotion policy of the bank seniority alone does not confer any right of promotion and for a maximum aggregate marks of hundred the weightage of five marks has been given to seniority for promotion to the next grade. 25. 24. Mr. Ghosh, the learned advocate for the respondents further submitted that as per the present promotion policy of the bank seniority alone does not confer any right of promotion and for a maximum aggregate marks of hundred the weightage of five marks has been given to seniority for promotion to the next grade. 25. It is an admitted position that for successive years the petitioner's rating and the appraisal report have been rather poor. He could hardly cross the benchmark to be declared fit for promotion and, therefore, he stood excluded from the promotional process of the bank. It is not a case that the petitioner's case was not considered. He was admittedly called for interview from the year 2002-2003 onwards and he six times appeared before the Interview Board. He has been adjudged as not competent enough to shoulder higher responsibilities and failed to obtain the minimum qualifying marks in the appraisal reports. Therefore, he could not succeed at any chance. Thus it cannot be said that the respondents had in any conceivable manner violated the directive of the Supreme Court in the matter of granting promotion to the petitioner or had unfairly treated him. 26. Thus I find no merit in the writ petition. 27. The writ application is dismissed. 28. There shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.