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Madhya Pradesh High Court · body

2017 DIGILAW 473 (MP)

Bank of India, Mumbai v. Rahul

2017-04-10

P.K.JAISWAL, VIRENDER SINGH

body2017
ORDER : Heard on the question of admission. 2. Facts of the case are that the respondent, who is an Ex-Serviceman being aggrieved by the action of the appellant/bank, in not permitting the respondent to participate in the process of promotion, which is meant for promotion from Sub-ordinate Staff Cadre to Clerical Cadre had filed a writ petition against the order dated 01.09.2015 and prayed that the appellant be directed to consider him as a graduate on the basis of graduation certificate issued by the Indian Army and to permit him to participate in the process of selection from Sub-ordinate Staff Cadre to Clerical Cadre 3. Learned Writ Court considering the fact that the respondent is certainly an Ex-Serviceman and passed Higher Secondary Examination and was in the Indian Army for almost 18 years, relying on the certificate issued by the Indian Army in his favour, in the light of memorandum dated 01.09.2011, came to the conclusion that the respondent is entitled for the benefit flowing out of the certificate issued by the Indian Army on 01.09.2011 and has opined that he has to be treated as graduate for the purpose of promotion process and the objection of the appellant was rejected. In light of the certificate issued by the Indian Army, the respondent is certainly eligible to participate in the process of selection and is also holding the Secondary Certificate with 18 years of service, the action of the appellant in denying the respondent to participate in the process of selection by virtue of notification dated 17.08.2015 is bad in law and allowed the writ petition by directing the appellant/bank to treat the respondent as graduate for the purpose of appointment/promotion, keeping in view the notification dated 17.08.2015 and directed the appellant that in case the respondent is selected in the process of selection, the bank shall confirm all the benefits to the respondent and disposed of the writ petition. 4. Learned Senior Counsel for the appellant has drawn our attention to the certificate (Annexure-P/1) dated 01.09.2011 and submitted that the same can be treated only for the purpose of appointment in any reserved vacancy in Group 'C' posts. The aforesaid certificate cannot be used for further promotion process after direct recruitment. 4. Learned Senior Counsel for the appellant has drawn our attention to the certificate (Annexure-P/1) dated 01.09.2011 and submitted that the same can be treated only for the purpose of appointment in any reserved vacancy in Group 'C' posts. The aforesaid certificate cannot be used for further promotion process after direct recruitment. His next submission is that the promotion process is being carried out on the basis of settlement dated 15.11.2014 between the Management of Bank of India and the Representatives of the Federation of Bank of India Staff Unions and is therefore, binding upon all the employees of the bank since the elected members of the appellant and respondent were party to the bi-party agreement/settlement arrived, entered and signed between them. He has also pointed out that the eligibility criteria for the said promotion as per the settlement are graduate of recognised University with one year service or SSC or other equivalent examination of Government recognised Examination Board with 15 years of completed service in the bank. The respondent was only higher secondary. As per the certificate issued by the Indian Army, he could not be treated at par with the graduation certificate issued by the Recognised Board and approved by the UGC. However, since the respondent is Ex-Serviceman, so the benefit of quota had been extended to him for the purpose of appointment but this benefit cannot be extended twice as the respondent had already exhausted the benefit of being an Ex-Serviceman and now he is just like a civilian so Army certificate cannot be treated as a graduation certificate for the purpose of promotion from Sub-ordinate Cadre to Clerical Cadre from the existing staff and prayed for setting aside the impugned order. 5. The certificate dated 01.09.2011 issued by the Indian Army reads as under :- INDIAN ARMY GRADUATION CERTIFICATE 1. 5. The certificate dated 01.09.2011 issued by the Indian Army reads as under :- INDIAN ARMY GRADUATION CERTIFICATE 1. As per Government of India, Ministry of Personnel Public Grievances and Pension (Department of Personnel and Training) Office Memorandum No.15012/8/82/ESTT (D) dated 12.2.1986, Ex-service men who are matriculate (which term includes ex-servicemen who have obtained the Indian Army Special Certificate of Education or the corresponding certificate in the Indian Navy or the Air Force) and have put in not less than 15 years of service in the Armed Forces of the Union may be considered eligible for appointment to any reserved vacancy in Group 'C' posts for which the essential qualification is graduation and where experience of technical or professional nature is not essential. 2. It is therefore certified that Number 1440906817 Rank (Ex) His Name & Initials Rahul Holkar Trade DHE who had served in the Indian Army for 18 years from 27.Dec.93 to 31 Aug 2011 is to be considered educationally qualified for reserved Group 'C' posts where prescribed qualification is graduation. 6. Per contra, Shri Rishi Tiwari, learned counsel for the respondent (writ petitioner) has submitted that the impugned order was passed on 17.08.2016. Prior to finalization of the writ petition, no confirmation regarding his selection was given to him. For the first time, intimation was given to him vide letter dated 30.09.2016 i.e., after a period of more than one month of passing the impugned order. Thus, the contention that the learned Writ Court in allowing infructuous writ petition is totally misconceived and factually incorrect. He has further submitted that the appellant has relaxed the eligibility criteria and done away with the earlier requirement of graduation from recognised University and now the minimum educational qualification is 8th Standard Examination. He has also submitted that the appellant also selects personnel for Clerical Cadre directly through recruitment process wherein the educational qualification is a Degree (Graduation) from the recognised University. He has further submitted that in the direct recruitment process also, Army Special Certificate of Education issued after completion of 15 years of service in the Armed Forces is accepted by the appellant. Thus, when the subject certificate is acceptable for direct recruitment to Clerical Cadre, then there is no rationale for not considering it for promotion to the same cadre. 7. Thus, when the subject certificate is acceptable for direct recruitment to Clerical Cadre, then there is no rationale for not considering it for promotion to the same cadre. 7. In respect of settlement dated 15.11.2014, he has submitted that the aforesaid settlement was not signed by the appellant and respondent but was signed by the representatives of the appellant/bank and Federation of Bank of India Staff Unions. The certificate issued by the Indian Army was not considered in the aforementioned settlement however, when the Federation learnt about the same, it took cognizance of the Graduation certificate issued by the Indian Army and vide letter dated 11.09.2015 urged the appellant/bank to allow such Ex-Serviceman to participate in the promotion process. In respect of Clause 2(4) of order dated 12.02.1986 (Annexure-R/2), this order was in respect of re-employment in government. The present case is not of re-employment and, therefore, the said contention of the learned Senior Counsel has no force and prayed for dismissal of the writ appeal. 8. Relevant part of the order dated 19.08.2016 passed in W. P. No.6201/2015 by the Writ Court reads as under :- 5. Learned counsel for the respondent - Bank has heavily placed reliance upon the Memorandum of settlement dated 15.11.2014, signed at Mumbai on 15.11.2014 between the Management of Bank of India and the Representatives of the Federation of Bank of India Staff Unions for promotion of Subordinate Staff to Clerical Cadre under Section 2(P) and Section 18(1) of the Industrial Disputes Act, 1947 read with Rule No.58 of the Industrial Disputes (Central) Rules, 1957. The aforesaid Memorandum does provide for certain qualifications and it has been argued that the memorandum of settlement is binding upon all employee. This Court has carefully gone through the aforesaid memorandum settlement. It does not cater to the needs of Ex - Serviceman. There is no whisper of Ex - Serviceman in the memorandum of settlement and, therefore, the petitioner who is an Ex-Serviceman is certainly entitled for the benefit flowing out of the certificate issued by Indian Army dated 1.9.2011 (Annexure P/1) and, therefore, the contention raised by the respondent - Bank is of no help to the respondent - Bank. There is no whisper of Ex - Serviceman in the memorandum of settlement and, therefore, the petitioner who is an Ex-Serviceman is certainly entitled for the benefit flowing out of the certificate issued by Indian Army dated 1.9.2011 (Annexure P/1) and, therefore, the contention raised by the respondent - Bank is of no help to the respondent - Bank. It has been argued by the learned counsel for the petitioner that the Memorandum of Settlement has been signed in an air condition room, it has not been signed at 'Siachin Glacier' where the present petitioner and other Soldiers have dedicated their youth towards the service of Nation and, therefore, welfare measure has been taken by the Government of India to protect Ex - Soldiers. The argument of the learned counsel for the respondent - Bank is that the impugned order dated 1.9.2015 (Annexure P/3) which categorically speaks that Graduation Certificate issued by the Indian Army will not be considered as Graduation Certificate, since the concerned employee has not completed his graduation from any Institution recognised by the UGC. In the considered opinion of this court, the petitioner has to be treated as Graduate for the purpose of promotion process and the objection raised by the respondents is rejected. 6. In the light of the aforesaid certificate issued by the Indian Army, this court is of the opinion that the petitioner is certainly eligible to participate in the process of selection. Not only this the petitioner is also holding the Secondary Certificate with 18 years of service, otherwise also in considered opinion of this court the action of the respondent in denying the petitioner to participate in the process of selection by virtue of notification dated 17.8.2015 is bad in law. 6. Resultantly, the writ petition deserves to be allowed. 7. The respondent/bank is directed to treat the petitioner as Graduate for the purpose of appointment/promotion keeping in view the notification dated 17.8.2015. The respondent/bank is further directed that in case the petitioner is selected in the process of selection, the respondent shall confirm all the benefits to the petitioner. 9. 6. Resultantly, the writ petition deserves to be allowed. 7. The respondent/bank is directed to treat the petitioner as Graduate for the purpose of appointment/promotion keeping in view the notification dated 17.8.2015. The respondent/bank is further directed that in case the petitioner is selected in the process of selection, the respondent shall confirm all the benefits to the petitioner. 9. On due consideration of the aforesaid and Clause 2 of the office memorandum dated 14.08.2014 (Annexure-R/1), it is very clear that once Ex-Serviceman has joined the government job on civil side after availing of the benefits given to him as an Ex-Serviceman for his re-employment, his Ex-Serviceman status for the purpose of re-employment in government would cease. The present case is not for re-employment therefore, the said clause will not be applicable. 10. From the aforesaid facts and circumstances, we are of the view that learned Writ Court gave the benefit of Graduation certificate issued by the Indian Army and the same will be applicable in the present case also and learned Writ Court has not committed any legal error in allowing the writ petition. No case to interfere with the impugned order, as prayed is made out. The writ appeal filed by the appellant has no merit and is accordingly, dismissed.