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2019 DIGILAW 506 (RAJ)

D. C. Rohilla v. Bank Of Baroda

2019-02-12

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

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JUDGMENT Mohammad Rafiq, J. - This appeals seeks to challenge judgment dated 31.01.2006 passed by the learned Single Judge of this Court whereby the writ petition filed by the appellant was dismissed. The appellant in the writ petition prayed for direction to the respondents to comply with Circular dated 13.08.1986 and the Promotion Policy (Amendment) Settlement, 1988 in case of promotions of ex-servicemen re-employed in public sector banks so as to give weightage to their defence services in promotion and to declare him successful in the selection list for promotion from Clerical Cadre to Officers Cadre along with all consequential benefits from February, 1990. 2. The appellant was appointed as Leading Redar Mechanic No. 91614 at Vishakhapatnam, Andhra Pradesh in the year 1966 and continued to serve in the Indian Navy at various places till 1977. He was thereafter selected in Clerical Cadre in the banking services as an ex-serviceman under special quota. He was posted at Bank of Baroda, Kota on 11.03.1978 in Clerical Cadre. He was thereafter transferred to Zonal Office, Bank of Baroda, Jaipur. Later on he was designated as Head Cashier and posted at M.I. Road Branch of the Bank of Baroda at Jaipur. According to the appellant, his services were covered by Memorandum of Settlement on Promotion Policy dated 22.09.1977 arrived at between the Bank of Baroda and All India Bank of Baroda Employees Federation, which related to promotion of banks employees. The aforesaid settlement laid down the promotion policy of the employees of Bank of Baroda. The said promotion policy in the form of settlement was time and again modified/amended as and when required by the parties to the settlement, which provided that for internal promotions from Clerical Cadre to Officers Cadre shall be made by the bank with weightage of 175 marks for seniority; 125 marks for qualifications and 200 marks for merit. 200 marks prescribed for merit were further divided in two parts i.e. 125 marks for written test and 75 marks for interview. Thus, the total marks were 500. 200 marks prescribed for merit were further divided in two parts i.e. 125 marks for written test and 75 marks for interview. Thus, the total marks were 500. Clause 6 of the aforesaid Settlement on Promotion Policy of 1977 provided that an eligible candidate will be given 12 marks (twelve and a half marks) for every completed year of service for the 14 years of his service in the Clerical Cadre and for such service of 14 years and above, he would be given 175 marks (one hundred seventy five marks). The complete years of service would be calculated as of the last day for submitting applications for promotions. The maximum number of marks for service shall not exceed 175 marks. In calculating completed year of service as of the last day for submitting applications for promotions, service of six months and above would be taken as a completed year of service. Service of less than six months shall be ignored. It further provided that the policy regarding reservation of seats for promotion to Officers/Clerical Cadre for Scheduled Castes/Scheduled Tribes/Ex-servicemen will be as may be desired by the Government under a policy guideline/directive. The Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) vide letter/Circular dated 13.08.1986 clarified to the Chairmen and M.D.s of 20 Nationalised Banks including respondent Bank of Baroda that the banks may allow for the purpose of seniority in promotion to their ex-servicemen employees recruited against reserved posts in the Clerical and Subordinate Cadre, weightage for the period of service rendered by them in the armed forces in the ratio of 5:1 subject to a maximum of 2 years after they have rendered at least 3 years actual service in the banks after re-employment. This benefit was to be available to the ex-servicemen only once during their career. 3. Mr. Anupam Agarwal, learned counsel for the appellant argued that in view of aforesaid Circular of the Government of India dated 13.08.1986, the appellant was entitled to seniority of 2 years as against 11 years of services rendered by him with the armed forces in the ratio of 5:1 and accordingly in terms of Settlement on Promotion Policy dated 22.09.1977, he was further entitled to award of additional 25 marks (12.5 marks for each year) for aforesaid seniority of 2 years. However, the same were not awarded to the appellant despite clear cut provision. However, the same were not awarded to the appellant despite clear cut provision. The appellant applied for promotion from Clerical Cadre to Officer Cadre in terms of Circular dated 02.05.1989 issued by the respondent-Bank. Marks obtained by him in written test and interview have been brought on record as Annexure-II of the writ petition, which clearly shows that he was successful in both the tests. However, he was not awarded additional 25 marks towards seniority of 2 years, which weightage was to be given to him owing to services rendered by him with armed forces, in terms of aforementioned Circular of the Government of India and the specific provision having been made in the Circular dated 02.05.1989. Reliance is placed on the aforesaid Circular issued by the Government of India and clause 12.3 of the Promotion Policy (Amendment) Settlement, 1988. The appellant submitted number of representations to the respondent-bank specifically pointing out aforementioned guidelines issued by the Government of India vide circular dated 13.08.1986 for giving weightage to the ex-servicemen, who rendered their services with armed forces but the same was of no avail. Learned Single Judge has erred in law in holding that the appellant was not able to reach the cut off marks as per the criteria devised for determining the merit and therefore he could not be given promotion. Learned Single Judge has further erred in law in holding that Circular of the Government of India dated 13.08.1986 does not apply to the case of the appellant in view of the subsequent amendment arrived at between the parties vide Settlement dated 02.03.1988. 4. Mr. Rupin Kala, learned counsel for the respondents opposed the appeal and argued that the promotion exercise was accomplished long before issuance of modified guidelines by the Government w.e.f. 01.02.1990. It was not practicable for the respondent-bank to consider case of the appellant. The promotion policy was adopted as incorporated in the Memorandum of Settlement dated 22.09.1977. The appellant was given the benefits of policy for appearance in the promotion exercise conducted in the year 1990. Thus, the appellant would not be justified in raising such grievance as his candidature was considered for the purpose of promotion from Clerical Cadre to Officers Cadre. The promotion policy was adopted as incorporated in the Memorandum of Settlement dated 22.09.1977. The appellant was given the benefits of policy for appearance in the promotion exercise conducted in the year 1990. Thus, the appellant would not be justified in raising such grievance as his candidature was considered for the purpose of promotion from Clerical Cadre to Officers Cadre. The appellant was given 137.50 marks computing 12.50 marks per year but in addition to that, he was not entitled to benefit of additional 25 marks on the basis of seniority for the services by him in the Armed Forces because as per the interpretation of the promotion policy, due weightage was given to the appellant for appearing in the promotion exercise of 1990. Amended guidelines issued by the Government of India were received by the respondent-Bank after completion of promotion exercise and therefore, it could not be considered at the time of promotion exercise. It is denied that the appellant was entitled to 357.25 marks out of 500 marks. In fact, he was entitled to 332.25 marks out of 500 marks. Since the marks secured by last selected candidate were 342.05, the appellant could not be promoted to the post of J.M. Grade/Scale I. Representation submitted by the appellant was duly considered and rejected by the respondents vide letter dated 28.01.1991. Earlier also, he was informed about the same in December, 1990. The respondent-Bank has considered the spirit and intention of the Circular dated 13.08.1986 as the matter was purely a matter of interpretation. The seniority of ex-servicemen was considered for the purpose of permitting to appear and participate in the promotion exercise and the appellant was also given the chance to appear in the promotion exercise. Amended guidelines were received by the bank after completion of promotion exercise. Therefore, it cannot be said that the right of promotion was denied to the appellant. The appellant very much appeared in the promotion exercise but he was declared unsuccessful. There is no case for discrimination or violation of Article 14 of the Constitution of India. Learned counsel relying upon judgment of Division Bench of this Court at Principal Seat at Jodhpur in Rajendra Singh v. State of Rajasthan & Others, 2003 (1) SLR 593 argued that once the selection process is over it cannot be reopened after long time. 5. Learned counsel relying upon judgment of Division Bench of this Court at Principal Seat at Jodhpur in Rajendra Singh v. State of Rajasthan & Others, 2003 (1) SLR 593 argued that once the selection process is over it cannot be reopened after long time. 5. Learned counsel alternatively submitted that even if this Court is not inclined to accept his submissions and is persuaded to allow the appeal, the appellant should be granted notional benefits and not the actual benefits on the principle of dies-non, i.e. no work no pay. 6. We have given our anxious consideration to rival submissions and carefully perused the material on record. 7. Circular dated 13.08.1986 issued by the Government of India was quite categorical and relevant part of the said circular reads as under: "In terms of para 4 of this Department letter No. 248-78-SCR(B) dated 28th January, 1983, the banks were advised that if certain number of years of service are prescribed as a minimum eligibility criteria for promotion from one cadre to another, the banks may in this regard suitably modify the rules to give weightage to ex-servicemen on the basis of their service in the defence forces. Various banks have interpreted this provision differently. While most of the banks are not allowing any weightage to the defence service of the re-employed ex-servicemen for the purpose of seniority/promotion, etc., some of the banks have allowed certain benefits. Representations have been received from the Ex-servicemen that some weightage should be accorded to the service rendered by them in the defence forces prior to their absorption in the banks. The whole issue has been considered at length and it has been decided that banks may allow for the purpose of seniority in promotion, to their ex-servicemen employees recruited against reserved posts in the clerical and sub-ordinate cadre, weightage for the period of service rendered by them in the armed forces in the ratio of 5:1 subject to a maximum of 2 years after they have rendered at least 3 years actual service in the banks after re-employment. This benefit will be available to the ex-servicemen only once during their career." 8. This benefit will be available to the ex-servicemen only once during their career." 8. The learned Single Judge has noted that the promotion scheme has been framed as per the settlement arrived at between the respondent-Bank and the All India Bank of Baroda Employees Federation on 02.03.1988 whereby some amendments were made in the earlier Settlement on Promotion Policy dated 22.09.1977. Clause 12.2 of the amended promotion policy settlement reads as under: "Notwithstanding anything to the contrary contained in this Settlement, for the purpose of determining minimum eligibility for promotions from subordinate to clerical cadre or from clerical cadre to officers cadre, ex-servicemen employees who were recruited against reserved posts in the clerical/subordinate cadre, shall for their service in defence forces, be given weightage at the rate of 5:1, i.e. For every completed five years of service in defence force they will be given weightage of one year, subject to a maximum of 2 years weightage. The said weightage to the ex-servicemen employees shall be given only after they have rendered at least 3 years of actual service in the Bank. The said weightage shall be available to an ex-serviceman employee only once during his career." 9. The respondent-Bank issued notice for information of all to undertake exercise for promotion on 02.05.1989 wherein clause with regard to giving weightage of defence service to the ex-servicemen was included, which reads as under: "WEIGHTAGE OF DEFENCE SERVICE TO THE EX-SERVICEMEN EMPLOYEES FOR THE PURPOSE OF PROMOTION: In terms of Government guidelines and the promotion policy (Amendment) Settlement, 1988 arrived at between the Bank and the All India Bank of Baroda Employees Federation, Recognized Union, ex-servicemen employees will be allowed weightage for the period of service rendered by them in armed forces at the rate of 5:1, i.e. For every completed five years of service in defence force, they will be given weightage of one year, subject to a maximum of two years weightage. The said weightage to the ex-servicemen employees shall be given only after they have rendered at least three years of actual service in the Bank. Please note that the said weightage shall be available to an ex-serviceman employees only once during his career." 10. A conjoint reading of the aforesaid would make it evident that weightage was required to be given to the ex-servicemen employees for the purpose of promotion. Please note that the said weightage shall be available to an ex-serviceman employees only once during his career." 10. A conjoint reading of the aforesaid would make it evident that weightage was required to be given to the ex-servicemen employees for the purpose of promotion. Learned Single Judge, however, has taken a view that it could be given only to the extent of determining their eligibility for consideration for promotion to the Officer Cadre and that nowhere in the settlement or the notice issued by the respondent-Bank it has been mentioned that additional marks for years of service rendered in the armed forces shall be given while determining the merit. We are unable to persuade ourselves to concur with the view taken by the learned Single Judge because if this view is upheld, the very purpose of giving weightage for the defence service rendered by ex-servicemen would be frustrated. All the three aforementioned circular and/or orders make it clear that weightage for the defence services rendered by an ex-serviceman has to be given at the rate of 5:1, i.e. for every completed five years of service in defence force, they will be given weightage of one year. Since the appellant in this case has completed 11 years of defence service, he was entitled to seniority of 2 years and since 12.50 marks were admissible for every completed year of service, the appellant was entitled to additional 25 marks for the aforesaid 2 years of weightage of service in defence force as per the Government of India Circular dated 13.08.1986 read with Clause 12.2 of Promotion Policy (Amendment) Settlement, 1988. As per own showing of the respondent-Bank, the appellant secured 332.25 marks and if 25 marks for weightage towards the service rendered by the appellant with the armed forces is added thereto, the total would come to 357.25 marks and thus, he would be successful candidate being secured more marks than the last selected candidate, i.e. 342.05. 11. Stand of the respondent-bank that the aforesaid Circular of the Government of India dated 13.08.1986 was received by the bank after the exercise of promotion was completed in the year 1990 is a very weak defence. 11. Stand of the respondent-bank that the aforesaid Circular of the Government of India dated 13.08.1986 was received by the bank after the exercise of promotion was completed in the year 1990 is a very weak defence. It cannot be believed that the aforesaid Circular of the Government of India was received by the respondent-Bank at a later stage after completion of exercise of promotion because the aforesaid Circular was addressed to Chairmen cum Managing Directors of all the Nationalised Banks including respondent-Bank and on that basis, the settlement arrived at between the respondent-Bank and the All India Bank of Baroda Employees Federation was amended on 02.03.1988 by incorporating Clause 12.2 (supra) therein and the respondent-Bank also issued notice dated 02.05.1989 wherein the provision to the aforesaid effect was also made. Since it was a mistake on the part of the respondent-Bank in not adhering to the directives of the Government of India contained in Circular dated 13.08.1986 and Promotion Policy (Amendment) Settlement, 1988 dated 02.03.1988, the appellant cannot be deprived of the actual monetary benefits, there being no fault on his part. 12. In view of above discussion, the appeal is allowed. Judgment dated 31.01.2006 passed by the learned Single Judge of this Court is set aside. The respondents are directed to grant promotion to the appellant from Clerical Cadre to Officers Cadre with all consequential benefits together with interest @ 6% per annum. Compliance of this judgment be made by the respondents within three months.