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2021 DIGILAW 183 (GAU)

Suman Dey v. Punjab National Bank

2021-02-26

KALYAN RAI SURANA

body2021
JUDGMENT Kalyan Rai Surana, J. - Heard Mr. B. Chakraborty, learned counsel for the petitioner. Also heard Mr. P.K. Kalita, learned senior counsel assisted by Mr. K.R. Borooah, learned counsel for the respondents. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner, who is presently working in the post of Senior Manager, Law (Grade-II), has prayed for the following reliefs: i) Why the selection process initiated pursuant to the impugned notice/ advertisement dated 12.02.2019 (Annexure-4) shall not be quashed and set aside or modified. ii) Why a direction shall not be issued to the authorities to work out the proper ratio of post of Manager, Law (Scale-III) to be filled up by promotion and by direct recruitment. iii) Why a direction shall not be issued to the authorities to consider the case of the petitioner for promotion to the post of Senior Manager, Law (Scale-III) pursuant to the process initiated by notification dated 05.01.2019 against the due vacancies to be filled up by promotion after working out the ratio. 3. The case projected by the petitioner is that while preparing for departmental promotion exercise from Senior Manager, Law (Grade-II) to Senior Manager, Law (Grade-III), he had come across the advertisement dated 12.02.2019 for direct recruitment of Technical Officer, by way of which 55 (fifty five) posts of Senior Manager, Law (Scale-III) were sought to be filled up. It is submitted that in the previous promotional process, results were declared on 01.04.2019 and the petitioner did not qualify. In this context, the learned counsel for the petitioner has submitted that the petitioner has not assailed the previous promotional exercise that had culminated on 01.04.2019, but he has challenged the advertisement for direct recruitment dated 12.02.2019, inter alia, on the ground that the posts of Senior Manager, Law (Scale-III) by way of direct recruitment and promotion had to be filled up in the ratio of 50:50. It is submitted that while 55 numbers of fresh vacancy and 2 previous vacancies, i.e. 57 (fifty seven) vacant posts of Senior Manager, Law (Scale-III) was to be filled up, the respondents had earmarked only 2 (two) vacant posts for being filled up by way of promotion. It is submitted that while 55 numbers of fresh vacancy and 2 previous vacancies, i.e. 57 (fifty seven) vacant posts of Senior Manager, Law (Scale-III) was to be filled up, the respondents had earmarked only 2 (two) vacant posts for being filled up by way of promotion. Accordingly, the grievance of the petitioner is that the respondents are trying to fill up the vacant posts of Senior Manager, Law (Scale-III) at their whims and fancies without maintaining any ratio of filling up such posts by way of direct recruitment and promotion. It is submitted that if the promotional posts are not earmarked, the petitioner and others, who are expecting their promotion would never get a promotion to Scale-III level. Accordingly, the petitioner has sought for relief in terms of prayers as indicated herein before. In support of his submissions that there must be a quota for direct recruitment and for filling up posts on promotion, the learned counsel for the petitioner has referred to the case of S.G. Jaisinghani vs Union of India, (1967) AIR SC 1427. 4. Per contra, the learned senior counsel for the respondents has submitted that in the promotion policy for Technical Officer, which includes the posts of Senior Manager, Law (Scale-III), there is no prescribed ratio for filling up of such vacant posts of Senior Manager, Law (Scale-III) and, as such, it is stoutly denied that the vacancies are likely to be filled up in the ratio of 50:50 as claimed by the petitioner. It is submitted that as per the advertisement dated 12.02.2019, it was envisaged that all the posts were to be filled up by direct recruitment and in this regard, it is submitted that 2 (two) posts, which has been mentioned by the petitioner was to be filled up by way of promotion in the previous promotion exercise, which had culminated on 01.04.2019. It is further submitted that just because there is no indication of filling up such posts in a particular ratio from amongst direct recruiters and promotes, the direct recruitment cannot be said to be arbitrary. It is further submitted that the petitioner had participated in the process for filling up posts by way of promotion and on being unsuccessful, it was not open for the petitioner to challenge the recruitment process initiated vide advertisement dated 12.02.2019. 5. It is further submitted that the petitioner had participated in the process for filling up posts by way of promotion and on being unsuccessful, it was not open for the petitioner to challenge the recruitment process initiated vide advertisement dated 12.02.2019. 5. Before appreciating the argument advanced by the learned counsel for the petitioner and the learned senior counsel for the respondents, it would be appropriate to deal with the case of S.G. Jaisinghani (supra). It appears that the relevant service Rules did have a ratio for direct recruits and promotees and in the said case, Rules were amended in the year 1952. In that case there arose a question whether the Rules was discriminatory and in that context, the Supreme Court of India had examined the purpose of 1952 Rules and it was observed as follows "Rule 4 states that the prescribed minimum service for Class I, Grade II Officer in the matter of promotion to Grade I of that Service is five years gazetted service including one year in Class I, Grade II. For a promotee therefore the minimum period of service for promotion to Class I, Grade I is actually 4 years service in Class II, Grade III and one year service in Class I, Grade II. The object of the rule is really to carry out the policy of rule 1 (f) (iii) of the Rules of Seniority, and not allow it to be defeated by the requirement of five years service in Class I, Grade II itself before consideration for promotion to Class I, Grade I. The promotee is placed senior to a direct recruit who completes probation in the year in which the promotee is selected by the Departmental Promotion Committee. If it should be laid down that the past service as Income-Tax Officer in Class II is not to be counted, then rule I (f) (iii) would be nullified, because directly recruited officers junior to the promotees would go to Grade I earlier than the promotee officers. For example, a promotee certified fit by the Departmental Promotion Committee in 1952 will be senior to the direct recruits who complete their probation in that year. For example, a promotee certified fit by the Departmental Promotion Committee in 1952 will be senior to the direct recruits who complete their probation in that year. And if it is to be laid down that the promotee officer shall not count his period of service in Class II for the purpose of promotion to Grade I, Class I he will have to wait till 1957 or 1958 to go to Grade I, Class I. While direct recruits who completed their probation in 1952 or 1953 would have gone to Grade I, Class l in 1955 or 1956, counting the five years period from the date; on which they were placed on probation. To remove this anomaly the promotion rule has been framed and we are unable to accept the argument of the appellant that there is any discrimination in the working of this rule. The rule of promotion is inextricably linked with the rule of weightage and seniority in Grade II. If in the rule of promotion the service in Grade III is not to be taken into account, seniority in Grade II would be an empty formality." After further discussions on the concerned Rules, it was observed by the Supreme Court of India that "We should also like to suggest to the Government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota between the direct recruits and the promotees and that a roster should be maintained indicating the order in which appointments are made by direct recruitment and by promotion in accordance with the percentages fixed under the statutory rule for each method of recruitment." The later observation cannot be treated as if a law has been laid down to the effect that each and every recruiting department must have a ratio in which the particular post is to be filled up by direct recruitment and promotion. Thus, on facts, the cited case is distinguishable from the facts of the present case in hand, as such, the ratio of the cited case is not applicable under the facts of this case. 6. In the matter of employment, the employer must have a free hand to decide how to recruit personnel for a particular post of Senior Manager, Law (Scale-III) in the absence of Rules prescribing any ratio in which such posts are to be filled up. 6. In the matter of employment, the employer must have a free hand to decide how to recruit personnel for a particular post of Senior Manager, Law (Scale-III) in the absence of Rules prescribing any ratio in which such posts are to be filled up. In this connection, the petitioner is not found to have any fundamental right to have the post of Senior Manager, Law (Grade-III) to be filled up in a particular manner. The petitioner had participated in the departmental promotion exercise for filling up the post of Senior Manager, Law (Grade-III) on promotion. Therefore, it is seen that the petitioner does not have a grievance that there is no scope for any career advancement avenue open in his remaining service career and that he would stagnate in same post in service. Therefore, as no legal and fundamental right of the petitioner is found to have been violated. 7. It is not the case of the petitioner that by the Promotion Policy for Technical Officer in force, which includes the posts of Senior Manager, Law (Scale-III), which does not prescribe any ratio for filling up of vacant posts of Senior Manager, Law (Scale-III) by way of direct recruitment and promotion, his service conditions have been altered to detriment of any his right or interest whatsoever. Therefore, in the absence of any infringement of any legal or fundamental right, the petitioner is not found entitled to any relief in this writ petition. 8. Accordingly, this writ petition stands dismissed.