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2015 DIGILAW 896 (JHR)

Ashutosh Shankar v. State Bank of India

2015-07-31

PRAMATH PATNAIK

body2015
Judgment Pramath Patnaik, J. 1. Both the writ petitions have been taken up together with the consent of the parties as common issues are involved in both the writ petitions and are being disposed of by this common order. 2. In the aforesaid writ applications, the petitioners have inter alia prayed for quashing of order as contained in letter dated 29.07.2008 (Annexure-10 to the writ application) issued by the General Manager (Network-II), State Bank of India (respondent no.2), by which the services of the petitioners have been terminated from the bank with immediate effect in terms of Rule 29(2)(3) of the Service Rules for CREs-PB, 2007 and also for quashing of Fax letter dated 11.09.2008 (Annexure-13 to the writ application) issued by the Assistant General Manager (PBBU), respondent no.3 relating to rejection of representation for waiver of termination from service and for direction to reinstate the petitioners on the post of Customer Relationship Executive (Personal Banking), State Bank of India, Teleco Campus Branch, Jamshedpur with all consequential benefits. 3. Sans details, the facts as delineated in the writ applications in a nutshell is that in pursuance to the advertisement vide Annexure-1 to the writ applications, the petitioners were called to appear in interview. The petitioners having fulfilled all the requisite qualifications were issued appointment letter vide annexure-3 to the writ application on the post of Customer Relationship Executive (PB) on contract basis and they were directed to return the duplicate copy of offer letter duly signed by the petitioners, in token of acceptance of offer by 17.08.2007. The petitioners were appointed as Customer Relationship Executive on contract basis for a period of two years vide Memo dated 20.08.2007, which is evident from annexure-4 to the writ applications. It has been submitted in the writ applications that the petitioners continued to discharge their duties to the best satisfaction of his authority and for that he also received letter of appreciation, as evident from annexure-6 to the writ applications. In the meantime, the petitioners were intimated regarding non-completion of AMFI and IRDA certifications vide letter dated 26.06.2008, as per Annexure-7 and it was informed that the bank is compelled to terminate the services of the petitioners on completion of 30 days from the date of this letter in terms of Rule 29(2)(3) of Service Rules for Customer Relationship Executives, Personal Banking, 2007. Annexure-8 to the writ applications is the certificates issued by the Chairman, AMFI Mutual Fund (Advisors) and Annexure-9 is the result sheet of IRDA examination issued to the petitioners by the SBI Life Insurance Co. Ltd. But, to the utter surprise and consternation, the impugned order under Annexure-10 was issued to the petitioners vide letter dated 29.07.2008 terminating their services from the bank with immediate effect in terms of Rule 29(2)(3) of the Service Rules for CREs-PB, 2007. Being aggrieved by the impugned order of termination petitioners filed representations against the order of termination before the General Manager, Network-II, State Bank of India, LHO, Patna vide annexures-11 and 12 to the writ applications. Thereafter, the petitioners were intimated vide order dated 11.09.2008 that their representations have not been accepted by the authority concerned as evident from annexure-13 to the writ application and by way of annexure-14, petitioners have annexed Advertisement No.CRPD/CRE (PB)/2008-09/08 of Customer Relationship Executives (PB) wherein possession about AMFI and IRDA certificates have not been clearly mentioned. 4. Being aggrieved by the illegal action of the respondents and left with no alternative, efficacious and speedy remedy, the petitioners have approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of their grievance. 5. Per contra, the respondents have filed counter affidavits controverting the averments made in the writ application. In the counter affidavit, it has been submitted that the petitioners were appointed to the post of Customer Relationship Executives vide Advertisement No.CRPD/SCO/2006-07/07 and were appointed vide Annexure-A to the counter affidavit and vide letter dated 20.08.2007 the petitioners were advised to get the certificates of AMFI Certification from AMFI and CIR (Certified Insurance Facilitator) from IRDA. It has been submitted in the counter affidavit that even after ten months of joining the petitioners have not successfully completed AMFI/IRDA certification till date, on completion of 30 days from the date of the letter in terms of Rule 29(2)(3) of Service Rules for Customer Relationship Executives, Personal Banking 2007, which has been annexed as Annexure-B to the counter affidavit. It has been submitted that the petitioners were terminated on 29.07.2008 since they failed to complete the certification examinations during the period of 30 days from the date of the letter. It has been submitted that the petitioners were terminated on 29.07.2008 since they failed to complete the certification examinations during the period of 30 days from the date of the letter. It has further been submitted that the representation dated 04.08.2008 goes to prove that the petitioners have submitted themselves for fulfillment of the requirement of the welcome letter and in pursuance thereof they have already passed the AMFI Examination Certification on 29.06.2008 but they failed to pass the IRDA Examination/certification and due to non-fulfillment of these two requirements the petitioners were terminated vide letter dated 29.07.2008, as per Annexure-D to the counter affidavit. It has been further submitted that after accepting the terms and conditions of the contractual job of Customer Relationship Executive (personal Banking) for two years that too on completion of the two certification courses of AMFI and CIF, it is apparent from the petitioners representation that they were estopped from challenging those preconditions on false and frivolous ground that no such terms and conditions were ever informed to the petitioners. Thus, prayer has been made in the counter affidavit for dismissal of writ petition in limine. 6. Heard Mr. Ayush Aditya, learned counsel for the petitioner and Mr. Rajesh Kumar, appearing for the respondents. Perused the documents on record. 7. Learned counsels for the petitioners have strenuously urged that impugned order dated 29.07.2008, under Annexure-10 to the writ application and the order of rejection dated 11.09.2008, under annexure-13, is illegal, void and arbitrary, as such, there were no such precondition in the advertisement such as additional qualifications like AMFI/CIF. The learned counsel for the petitioners has further submitted that the impugned order of punishment under Annexures-10 and 13 is not legally sustainable being violative of Articles 14, 16 and 21 of the Constitution of India as also apart from that infringing Article 311-A of the constitution of India. Learned counsel for the petitioners by assailing the impugned order of Annexures-10 and 13 submitted that it is excessive and harsh and shocks the conscience of a prudent man. 8. In order to buttress their submission, learned counsel for the petitioners have relied upon the judgment reported in (1987) 4 SCC 646 (Durgacharan Misra Vs. Learned counsel for the petitioners by assailing the impugned order of Annexures-10 and 13 submitted that it is excessive and harsh and shocks the conscience of a prudent man. 8. In order to buttress their submission, learned counsel for the petitioners have relied upon the judgment reported in (1987) 4 SCC 646 (Durgacharan Misra Vs. State of Orissa and Ors.), wherein the Hon’ble Apex Court in paragraph 15 has been pleased to hold inter alia that the authorities cannot prescribe additional requirements for selection either as to eligibility or as to suitability after selection of the candidates. Learned counsel for the petitioners have also referred to paragraph 11 of the judgment reported in (2007) 9 SCC 497 , which reads as under:- “11. It is now well settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as were prevailing on the date of vacancy should ordinarily be followed.” 9. Learned counsels for the petitioners have also referred to the order/judgment dated 24.11.2014 of this Court passed in W.P. (S) no.4785 of 2009, wherein this Court referred to the judgment of the Hon’ble Apex Court reported in (2004) 3 SCC 553 (ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others) and (2009) 1 SCC 150 (Karnataka State Forest Industries Corporation Vs. Indian Rocks). 10. Learned counsels for the petitioners in support of their contention have referred to Rule 29(2)(3) of State Bank of India Service Rules for Customer Relationship Executives, Personal Banking 2007, which reads as follows:- “29.2. The Bank may at its sole discretion terminate the contractual appointment by giving one month’s notice or one month’s gross emoluments in lieu thereof to officer during the first year of service and thereafter by giving 3 months notice or three months gross emoluments in lieu thereof. The gross monthly emoluments would mean the total monthly emoluments on Cost to Bank basis and will include basic pay, conveyance allowance and housing allowance. No other allowance/reimbursement or variable pay shall form part of gross monthly emoluments for the purpose of this rule. Further, for this rule, Bank’s service shall mean continuous service in the Bank including the period of service completed by renewal(s) of contract. No other allowance/reimbursement or variable pay shall form part of gross monthly emoluments for the purpose of this rule. Further, for this rule, Bank’s service shall mean continuous service in the Bank including the period of service completed by renewal(s) of contract. The decision in this respect would be taken by the Appointing Authority on the recommendations of the Departmental Head under whom CRE(PB)/CRE(PB)1, CRE(PB)2, CRE(PB)3, CRE(PB)4 is working. The officer has the option to appeal against this order to the Appellate Authority as mentioned in Rule 34 within 15 days of passing the order. The option to terminate the contract of service of CRE(PB)/CRE(PB)1, CRE(PB)2, CRE(PB)3, CRE(PB)4 would be exercised whenever the Appointing Authority is satisfied by record and recommendations that it is not in the interest of the Bank to continue the appointee on Bank’s contractual service and would inter alia include the following circumstances. (iii) Or for any other good and sufficient reason(s) considered proper in the public interest to be recorded in writing.” 11. Learned counsel for the respondents-Bank on the other hand has dexterously countered the submissions advanced on behalf of the petitioners by submitting to the statements made in the counter affidavit, wherein he referred to the judgment rendered by Hon’ble Patna High Court in C.W.J.C. No.14622 of 2012 that on the ground that since the services of the petitioners are contractual in nature, writ petition is not maintainable. 12. Having heard the learned counsel for the parties and on perusing the rivalised submissions, the impugned order under Annexures-10 and 13 are not legally sustainable due to the following facts, reasons and judicial pronouncements:- (I) Admittedly, the petitioners were appointed in pursuance to advertisement vide Annexure-1 to the writ application as Customer Relationship Executive (personal Banking), having fulfilled all the requisite qualifications and meritorious service of the petitioners has already got appreciation of the authorities, which is evident from Annexure-6 to the writ application. It appears from Annexure-7 to the writ applications that in order to dispense with the services of the petitioners, one months’ notice was given to the petitioners vide Rule 29(2)(3) of the Service Rules so as to enable them to attain the qualification of AMFI and CIF (Certified Insurance Facilitator) but the impugned order has been passed under Annexure-10 to the writ application on the ground that non-completion of the said certification instantaneously by the authority is not legally sustainable in terms and conditions of the advertisement as evident from annexure-1 to the writ applications. Therefore, the action of the respondents in terminating the services of the petitioners and rejecting the representation vide annexures-10 and 13 respectively are not legally sustainable. (II) So far as maintainability of the writ petition is concerned, the Hon’ble Apex Court in the case of Karnataka State Forest Industries Corporation Vs. Indian Rocks as reported in (2009) 1 SCC 150 , at paragraph 38 has held as under:- “38. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State if arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable.” In this regard, the Hon’ble Apex Court in the case of ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others as reported in (2004) 3 SCC 553 at paragraphs 23 and 53 has further held as under:- “23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India ……… 53. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India ……… 53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution ………” (III) That the decisions of the Hon’ble Patna High Court referred by the learned counsel for the respondents as per the supplementary counter affidavit, vide Annexures-E and F are clearly distinguishable as those decisions cannot be applicable in the instant case and petitioners’ case stand on different footing. Admittedly, indisputably the petitioners having all the requisite qualifications faced interview and were selected and continued in services in instance of additional qualification by the authorities which was not in the advertisement ought not to have been insisted thereby infringing Article 14, 15 and 21 of the Constitution of India. Therefore, impugned order of termination vide Annexure-10 and rejection of representation vide Annexure-13 of the writ applications are legally unsustainable and are liable to be quashed. 13. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order of termination vide annexure-10 to the writ applications and the rejection of representation vide Annexure-13 to the writ applications are quashed and the respondents are directed to pay the salary till the completion of contract period and respondents are further directed to consider the case of the petitioners afresh on the post of Customer Relationship Executive (personal Banking) as per relevant rules and regulations. 14. With the aforesaid directions, both aforesaid writ applications stand disposed of.