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2020 DIGILAW 39 (ORI)

Santosh Kumar Mohapatra v. Central Bank of India

2020-02-05

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanying writ application, the petitioner has sought for quashing of the impugned order dated 08.06.2013 under Annexure-5 and prayer has been made for direction to the opposite parties to give promotion to the petitioner to the post of Scale-V and Scale-VI with consequential service and financial benefits keeping at par with the batch mate and juniors. 2. The brief facts as delineated in the writ petition is that the petitioner entered into Central Bank Service as Agricultural Financial Officer on 25.10.1985 and confirmed in Scale-II. While continuing as such, due to personal grudge and mala fide the petitioner received a Memo dated 06.12.2005 and pursuant to the said Memo, the petitioner submitted his reply. Not being satisfied with the reply, submitted by the petitioner charges were framed against the petitioner asking him for filing of show cause as per the Central Bank of India (Discipline & Appeal) regulation. It is stated that without receiving show cause from the petitioner, the Inquiry Officer and Presenting Officer were appointed by letter dated 12.09.2006. After conclusion of the Departmental Proceeding, the Disciplinary Authority passed order of punishment dated 10.09.2007 by inflicting punishment against the petitioner reducing the petitioner's salary. Being aggrieved by punishment order dated 10.09.2007 the petitioner preferred appeal and the said appeal was rejected confirming the order of the Disciplinary Authority, by enhancing the punishment without giving any opportunity to the petitioner. The petitioner filed writ application, i.e., W.P.(C) No. 6550 of 2008 challenging the order of Disciplinary Authority as well as Appellate Authority and the said writ petition was disposed on 30.03.2011 by quashing the order of the disciplinary authority as well as appellate authority and the matter was remitted back to the Disciplinary Authority for fresh consideration. In pursuance of the order passed by this Court dated 30.03.2011, the disciplinary authority vide order dated 05.06.2012 exonerated the petitioner from all the charges, as evident from Annexure-2 to the writ petition. Thereafter, the petitioner submitted representation dated 13.07.2012 before the Chairman and Managing Director, Central Bank of India, Central Office, Mumbai through proper channel claiming promotion to Scale-V with effect from 04.05.2011 and the representation of the petitioner was duly forwarded to the office of opposite party No. 1. Opposite party No. 3 has rejected the representation vide letter dated 08.06.2013 vide Annexure-5 which is impugned in this writ petition. Opposite party No. 3 has rejected the representation vide letter dated 08.06.2013 vide Annexure-5 which is impugned in this writ petition. In spite of interim order passed in Misc. Case No. 5889 of 2008, the opposite parties vide letter dated 01.08.2008 vide Annexure-6 to the writ petition debarred the petitioner from the zone for consideration for promotion to the post of Scale-IV and V under Level Jumping Promotion Process for SMG Scale-IV & SMG Scale-V in Main Stream 2008-2009. Being aggrieved by the impugned order dated 08.06.2013 vide Annexure-5 the petitioner has been constrained to approach this Court under Articles 226 and 227 of the Constitution of India for redressal his grievances. 3. Additional affidavit has been filed by the petitioner, wherein it has been stated that the petitioner's juniors were promoted in this level jumping promotion to Scale-IV with effect from 01.01.2009 to Scale-V with effect from 04.05.2011 to Scale-VI with effect from 12.05.2013 and as Scale-VII from 01.07.2016. It has been further stated that level jumping promotion has been made by the Central Bank of India only once till date, thereby the Bank authorities have knowingly and misinterpreting the judicial interim order dated 05.05.2018 have not allowed the petitioner to sit for promotion examination. Therefore, the petitioner is entitled to be considered for promotion to the said rank like his batch mates and juniors on the principle of equality. It has been further stated that as per the promotion policy prevalent in 2008 an officer is entitled to promotion to different scales with following years of service under normal channel. Sl. No. Scale Min. Service Required Relaxation limit permitted 1. I to II 7 years 1 years 2. II to III 5 years 1 years 3. III to IV 5 years 1 years 4. IV to V 3 years 1 years 5. V to VI 2 years 6 months 6. VI to VII 3 years 1 years Further it has been submitted that the petitioner has CAIIB qualification and has completed 23 years as officer out of which 9 years service in Scale-Hand 5 years as branch head as required for level jumping promotion and future promotions. Hence, the petitioner has been illegally debarred to appear in level jumping promotion and thereby deprived of promotion prospects. Hence, the petitioner has been illegally debarred to appear in level jumping promotion and thereby deprived of promotion prospects. Apart from the factual aspects, the decision of the Hon'ble Apex Court have been cited in the said affidavit, so as to stake his claim for promotion with all consequential benefits at par with batch mate. 4. Mr. A.K. Mishra, learned Senior Counsel for the petitioner has strenuously urged that because of the arbitrary and illegal action of the opposite parties-Bank, the petitioner has been debarred for promotional prospects at par with batch mate and juniors, who have been promoted to different Scales and the petitioner has bee subjected to discrimination violating under Articles, 14 and 16 of the Constitution of India. Learned Senior Counsel for the petitioner has referred to the decision in the cases of Gurpal Singh v. High Court of Judicature for Rajasthan, (2012) 13 SCC 337 and Union of India & others v. K.V. Jankiraman and others, 1991 (4) SCC 109 . The Hon'ble Supreme Court observed in K.V. Janki Raman's case "26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings" The Hon'ble Supreme Court further observed in Gurpal's case 45. In this case, it is a matter of record that upon exoneration in the departmental enquiry, the petitioner was reinstated in service. No punishment was inflicted on him at all. However, during the pendency of the criminal trial as also the departmental proceedings he was not considered for promotion, when the cases of persons junior to him were considered. In our opinion, the High Court erred in directing in the Full Court Resolution dated 29th November, 2008, and the communication dated 24th January, 2009 that the petitioner shall not be entitled for any promotion. By placing reliance on the factual as well as legal dictum of Hon'ble Apex Court, the learned Senior Counsel has advanced his argument for relief sought for. 5. By placing reliance on the factual as well as legal dictum of Hon'ble Apex Court, the learned Senior Counsel has advanced his argument for relief sought for. 5. Controverting averments made in the writ petition, the counter affidavit has been filed by opposite party No. 3 wherein it has been submitted that the representation of the petitioner was rejected by the opposite party No. 1 by observing that "during the process of level jumping promotion the petitioner was debarred from participating in promotion process, in view of punishment imposed on him after conducting a regular Departmental Enquiry. Clause-3.8 of promotion policy of officers of the Bank, clearly stipulates that the petitioner will be under debarment for one process or two years whichever is later". The authorities concerned further observed that the claim of sealed cover is also not applicable to the petitioner, since the sealed cover procedure applies only to those officers against whom Disciplinary action is pending or contemplated but in the case of the petitioner is proceeding was completed and punishment was also imposed on him. For better appreciation, clause-3.8 of the Promotion Policy for Officers is quoted below:- "Clause-3.8 : Officers in respect of whom major penalty has been inflicted upon prior to the conduct of promotion process, would not be eligible to participate in the promotion process/s for one process or two years reckoning from the date of infliction of such penalty, whichever is later." Further it has been submitted that the decision cited by the petitioner passed by the Hon'ble Apex Court in the base of Gurupal Singh v. High Court of Judicature for Rajasthan (Writ Petition. (Civil) No. 200 of 2006 decided on 27.11.2012 is not applicable to the facts and circumstances of the petitioner's case. 6. Mr. P.K. Mohapatra, learned counsel for opposite party No. 3 submits that the petitioner has been debarred from participating in the said in the direct recruitment level jumping promotion in view of clause-3.8 of the promotion policy of Officers of the Bank. Learned counsel further submits that the sealed, cover procedure is not applicable to the petitioner since sealed cover procedure applies for those officers against whom, the disciplinary action is pending or contemplated, but in case of the petitioner proceeding was completed and punishment was imposed on him. Learned counsel further submits that the sealed, cover procedure is not applicable to the petitioner since sealed cover procedure applies for those officers against whom, the disciplinary action is pending or contemplated, but in case of the petitioner proceeding was completed and punishment was imposed on him. Further, the learned counsel for the opposite party No. 3 submitted that the punishment was imposed on the petitioner is under Regulation 4(f) of the central Bank of India Officer Employees (D & A) Regulations-1976 is major one. Therefore, the petitioner's claim, after five years from the date of cause of action for promotion in direct Recruitment Level Jumping Promotion Scheme 2008-2009 when the said scheme is not force, is not sustainable in the eye' of law. 7. Before adverting to the contentions of the respective parties, it would be apposite to refer to the relevant provision of the Promotion Policy for Officers(PPO). "3.7 Relaxation in minimum service criteria under certain circumstances-Zone of Consideration. (a) The Board of Directors may relax the minimum length of service as provided in Clause 3.1 to 3.6 above to the maximum extent given herebelow, for promotion from one Grade/Scale to another where the number of eligible officers is less than 3 times the number of posts available in the next higher grade/scale: Sl. No. Scale Min. Service Required Relaxation limit permitted 1. I to II 5 years 1 years 2. II to III 4 years 1 years 3. III to IV 4 years 1 years 4. IV to V 3 years 1 years 5. V to VI 2 years 6 months 6. VI to VII 3 years 1 years (b) For promotions to MMG Scale-II and MMG Scale-III under 'Normal Channel' and for promotions to SMG Scale-IV, the eligible candidates who apply in writing in the prescribed format within the stipulated time in terms of a circular issued for each such occasion, shall be arranged as per the inter-se seniority and from this list, number of officers to the extent not exceeding 4 times of the vacancies identified for each such channel/scale, as the case may be' shall be called for participating in the process. This shall be considered as 'Zone of Consideration' for promotions to these scales. This shall be considered as 'Zone of Consideration' for promotions to these scales. For promotions to SMG Scale-V and above, the eligible candidates in the order of seniority, to the extent of 3-4 times of the number of posts for which promotions are being considered, shall be called to participate in the interview. This shall be considered as 'Zone of Consideration' for promotion to these scales. The Board of Directors may relax the criteria of restricting the 'Zone of Consideration to 4 times the number of vacancies, in exceptional circumstances after recording the reasons in writing. One of the circumstances in which this relaxation would be considered in when the number of officers who have been superseded on the previous occasion i.e., appeared in previous process but were not selected, and are now again eligible to appear for promotion process with the result that fresh candidates in adequate numbers are not available for consideration. In such a situation, the Board would consider calling fresh candidates additionally beyond the prescribed limit of four times the number of posts available in the next higher grade/scale. However, such additional number would not exceed the number of superseded officers in the preceding promotion process. "Superseded officers" for this purpose shall mean those candidates who were considered in the last promotion exercise, but were not promoted and who were senior to the junior most candidate promoted. (c) However, in case of promotion from JMG Scale-I to MMG Scale-II under Fast Track Channel (wherever applicable) and Written Test Channel and MMG Scale-II to MMG Scale-III under "Written Test Channel', the names of officers who secure 50% and above in the Written Test shall be arranged in the order of marks obtained and from this list, number of officers to the extent not exceeding 4 times of the vacancies identified for each of the above two channels, shall be called for participating in the interview for selection to MMG Scale-II and MMG Scale III respectively. The officers who secure equal number of marks shall be ranked in the order of their inter se seniority. This shall be considered as 'Zone of Consideration' under 'Fast Track Channel' (wherever applicable) and/or 'written test channel', as the case may be. The officers who secure equal number of marks shall be ranked in the order of their inter se seniority. This shall be considered as 'Zone of Consideration' under 'Fast Track Channel' (wherever applicable) and/or 'written test channel', as the case may be. For removal of doubts, it is clarified that in case the number of candidates securing 50% and above falls below 4 times of the vacancies identified for this channel, then all the candidates who secured 50% and above in the written test shall be called for the interview. 3.8. Officers in respect of whom major penalty has been inflicted upon prior to the conduct of promotion process, would not be eligible to participate in the promotion process/s for one process or two years reckoning from the date of infliction of such penalty, whichever is later. 3.9. Procedure in case of officers against whom Disciplinary/Court proceedings are pending/initiated as on/after the date of initiation of promotion process. Officers who are under suspension or in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending or in respect of whom prosecution for a criminal charge is pending shall be permitted to participate in the promotion exercise subject to their fulfilling all eligibility conditions specified hereinabove. However, the findings of the Competent Authority in respect of their promotion shall be kept in a Sealed Cover. Further, an officer who is considered eligible for promotion in the promotion process but in whose case any of the circumstances stated above arises after he was found eligible for promotion but before he is actually promoted will be considered as if his case has been placed in the sealed cover. Further course of action in respect of such officers shall be decided by the Bank as per said Sealed Cover Procedure in terms of the directives/guidelines received from Government from time to time. The relevant clauses of Recruitment & Promotion Division, Human Resources Development Department more particularly Recruitment of Mainstream & Specialists Officers in Senior Management Grade Scale IV & V in the Central Bank of India are as follows: "4. The relevant clauses of Recruitment & Promotion Division, Human Resources Development Department more particularly Recruitment of Mainstream & Specialists Officers in Senior Management Grade Scale IV & V in the Central Bank of India are as follows: "4. Relaxation in Upper Age Limit: (i) Scheduled Caste/Tribe Candidates By 05 years (ii) Other Backward Class (OBC) Candidates By 03 years (iii) Ex-Servicemen/Commissioned officers including ECOs/SSCOs who have rendered at least five years of military service and have been released (a) On completion of assignment (including those whose assignment is due to by completed within 12 months form the date of application) otherwise than by way of dismissal or discharge on account of misconduct or inefficiency. (b) On account of physical disability attributable to military service or (c) On invalidment (iv) Persons With Disabilities (PWD) By 10 years (v) Persons domiciled in state of Jummu and Kashmir during the period from 01.01.80 to 31.12.89 By 05 years (vi) Officers in the RRBs who have put in a minimum 5 years of service By the number of years of service put in as an officer in a RRB subject to a maximum of 5 years. Note: The relaxation in age is available to SC/ST/OBC categories on cumulative basis with only one of the remaining categories for which age relaxation is permitted. 5. Scale of Pay: Approx, total emoluments at the start of the Scale + DA + CCA - HRA in Metro Centers. 5.1 SMG Scale IV Rs.20480-560/1-21040-620/5-24140 Rs.29,581.00 5.2 SMG Scale V Rs.24140-620/4-26620 Rs.34,771.00 In addition, accommodation (in lieu of HRA/Rent Reimbursement), conveyance, medical reimbursement, LFC, Superannuation benefits, etc., as admissible as per the rules of the Bank. 6. SELECTION PROCEDURE: Selection will be on the basis of written test, Group Discussion and Interview for Post Code 01 & 02 and through Group Discussion and Interview for Post Code 03 & 04 depending on the number of applications received for the post. Merely satisfying the eligibility norms do not entitle a candidate to be called for Written Test, Group Discussion and Interview. The Bank reserves the right to call only the requisite number of candidates for the Written Test, Group Discussion and Interview after preliminary screening/short-listing with reference to candidates qualifications, suitability, experience, etc. 8. Merely satisfying the eligibility norms do not entitle a candidate to be called for Written Test, Group Discussion and Interview. The Bank reserves the right to call only the requisite number of candidates for the Written Test, Group Discussion and Interview after preliminary screening/short-listing with reference to candidates qualifications, suitability, experience, etc. 8. INTERVIEW: Wherever the Bank decides to hold the written test, the short listed candidates in the order of ranking in the written test, as per the cut-off marks determined by the Bank shall be called for GD/Personality test/Interview and the decision of the Bank in this regard is final." After being exonerated from the charges vide order dated 15.06.2012 vide Annexure-2, the petitioner approached the authority of the Bank for consideration of his promotion by appealing for reconsideration of his promotion to Scale-IV and Scale-V since batch mates and juniors to petitioner were promoted during the intervening period of pendency of the disciplinary proceeding. 8. Law is well settled that once an employee is exonerated in a disciplinary proceeding and is found not blameworthy, the right of the petitioner for consideration of promotion at par with juniors does not get extinguished though right to promotion is not a matter of right but right to be considered for promotion is a right under Service Jurisprudence. In the instant case, admittedly, the petitioner has been exonerated from the charges and therefore, the service career of the petitioner is free from blemishes and there cannot be any justifiable reason not to consider the case of the petitioner for promotion from the date juniors and batch mates were promoted. Since it is a trite law, nobody has right for promotion but an employee has right to be considered for promotion. (The Hon'ble Apex Court has been pleased to refer the Gurpal Singh's case and Janki Raman's case.) 9. On the cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 08.06.2013 vide Annexure-5 is liable to be quashed and accordingly the same is quashed and set aside and the opposite parties are directed to consider the case of the petitioner for promotion to Scale-V to Scale-VI from the date of which the batch mate and juniors have been given promotion in view of the ratio of the Hon'ble Apex Court indecision of Gurpal Singh's case and Janki Raman's case. The entire exercise be completed within a period of twelve weeks from the date of receipt of communication of this order. On consideration of the case of the promotion, if the petitioner is found eligible to be promoted from Scale-VI to Scale-VII from the date of the juniors and batch mates were promoted, consequential service benefits as due and admissible be extended to the petitioner within a period of eight weeks thereafter. With the aforesaid observation/direction, the writ petition stands allowed.