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2018 DIGILAW 187 (CAL)

Asok Kumar Das v. Paschim Banga Gramin Bank

2018-01-29

I.P.MUKERJI, MD.MUMTAZ KHAN

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JUDGMENT : I.P. Mukerji, J. 1. The third to seventh respondents were promoted to the post of Officer Scale-II (MMG) by a circular dated 20th June, 1996 of the respondent bank, with effect from 7th June, 1996. A writ was filed in this Court in or about August, 2007 by the appellant challenging this promotion and seeking a direction on the respondent bank to promote him to the post of an officer (MMG) Scale-II with effect from the date the said respondents were promoted. The appellant also claimed all the benefits of orders in an earlier writ dated 21st April, 2005 and 12th April, 2007 as mentioned in prayer-(b) of the petition, in that writ in relation to those employees. 2. The appellant claims seniority over respondent No. 6 & 7. He claims that the promotion from JMG-I to officers MMG-II was to be on seniority-cum-merit basis on promotion of confirmed officers working in the bank. His complaint is that this basic selection criteria was Changed by the respondent-bank by allocating 50 marks for seniority (5 marks for each completed year of service). The marks for assessment of appraisal report and interview were 30 and 20 marks respectively. 3. Mr. Saha Roy for the appellant argues that the Central Government in exercise of its powers under Sections 17 and 29 of the Regional Rural Banks Act, 1976 framed the Regional Rural Banks (Appointment and Promotions of Officers and other Employees) Rules, 1988. He contends that Rule 7 read with paragraph 7 of the 2nd schedule to the rules provides that an Area Manager or Senior Manager could be recruited by promotion only based on seniority cum merit All sponsored banks and Regional Rural Banks were to follow these rules in the case of promotion from scale I to scale II (MMG). According to the appellant the Board of Directors of the Howrah Gramin Bank at its 80th meeting held on 26th December, 1995 had taken a resolution adopting a selection criteria which was in conflict with the said rules. 4. The appellant complains of supersession by the respondent Nos. 6 and 7. Subsequently, the respondent Nos. 6 and 7 have been promoted to scale-III. 5. In the seniority list, the appellant was uppermost Nirmal Kr. Maity (serial No. 6), Kalyan Nandi (serial No. 21), Asok Kr. 4. The appellant complains of supersession by the respondent Nos. 6 and 7. Subsequently, the respondent Nos. 6 and 7 have been promoted to scale-III. 5. In the seniority list, the appellant was uppermost Nirmal Kr. Maity (serial No. 6), Kalyan Nandi (serial No. 21), Asok Kr. Sen (serial No. 22), Sukumar Jatua (serial No. 23) and Dipankar Basu (serial No. 26) in the list who had also been superseded filed a writ application in this Court in 1996 (CO No. 12840(W) of 1996 Sri Nirmal Kr. Maity and Ors. v. Howrah Gramin Bank and Ors.). 6. On 21st April, 2005 these writs were allowed by Mr. Justice Jayanta Kumar Biswas. On or about 21st August, 2007 this writ application was filed. 7. Learned Counsel for the appellant contends that by awarding five marks for each completed year of service with a maximum of 50 marks, an officer with 10 years' seniority could claim the same benefit of seniority as a person with a much longer period of service as an officer. 8. If an employee has a claim to promotion on the ground of seniority his cause of action arises on the day he is eligible for such promotion and is denied the same. In this case the cut off date for consideration of the eligibility criteria was 31st March, 1995. The circular of the bank conveying its decision to promote officers from JMG-I to officers MMG-II was published on 2nd January, 1996. The interview was held on 31st January, 1996. The promotion order was made on 20th June, 1996. 9. In P.S. Sadasivaswamy v. The State of Tamil Nadu reported in AIR 1974 SC 2271 the Supreme Court opined that a person aggrieved by an order of supersession should approach the Court within six months or at most within year after such promotion. This view was reiterated by the highest Court in Shiba Shankar Mohapatra and Others v. State of Orissa and Others reported in (2010) 12 SCC 471 . The basic principle is that limitation runs from the date of accrual of cause of action, against a party. In other words, a party is expected to take prompt action on accrual of his cause of action. Otherwise, it is extinguished by delay. With every passing day, the delay mounts up. The basic principle is that limitation runs from the date of accrual of cause of action, against a party. In other words, a party is expected to take prompt action on accrual of his cause of action. Otherwise, it is extinguished by delay. With every passing day, the delay mounts up. Hence, if another person had gone to Court with the same cause of action, one should not wait for the result of that action to start his litigation as by that time he may have wasted considerable time. In an application under Article 226 of the Constitution of India, those strict rules of limitation may not apply. However, if an applicant has a right it is likely to be vitiated by delay. In the exercise of its jurisdiction under Article 226 of the Constitution of India, the Court sometimes gives reliefs which benefit not only the applicants before it but also those who did not approach it. These are called "orders of general application" as recognised in the case of K.I. Shephard & Ors. Etc. Etc. v. Union of India & Ors. reported in AIR 1988 SC 686 and in the judgment of the same Court by Mr. Justice A.K. Patnaik in Bharat Sanchar Nigam Limited v. Ghanshyam Dass and Ors. reported in 2011 LAB. I.C. 1283. In other cases which are party centric other parties cannot base their cause of action on another's. They were described as "fence-sitters" by the Supreme Court in the 2011 decision. The relief granted could not be "extended to these fence-sitters upsetting or interfering the rights of others." 10. We have no doubt in our mind that at one point of time the appellant prima facie had a good case to undo his supersession and to claim promotion from the post of JMG-I to officer MMG-II. We are in concurrence with the Hon'ble first Court that by passage of time this right has been eroded. If the appellant is now granted promotion it would "upset or interfere with the promotion" already granted to his colleagues. By no means can the door be opened for the appellant who after waiting for 11 years filed the writ application in 2007. 11. For all those reasons, we affirm the judgment and order dated 15th May, 2014 of Mr. Justice Sambuddha Chakraborty and dismiss the appeal. By no means can the door be opened for the appellant who after waiting for 11 years filed the writ application in 2007. 11. For all those reasons, we affirm the judgment and order dated 15th May, 2014 of Mr. Justice Sambuddha Chakraborty and dismiss the appeal. We, however observe that this order will in no way affect the right of the appellant for being considered for promotion, in the usual course. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Md. Mumtaz Khan, J. : I agree.