Kerala High Court
N.Anilkumar vs State Bank Of India on 24 March, 2017
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 24TH DAY OF MARCH 2017/3RD CHAITHRA, 1939
WP(C).No. 26107 of 2007 (G)
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PETITIONER :
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N.ANILKUMAR,
AGED 52 YEARS,
S/O. K.R.NARAYANAN NAIR,
SMG-IV (RETD.), STATE BANK OF INDIA,
RESIDING AT RANGEELA,
EAST KADUNGALLOOR, ALWAYE, ERNAKULAM, PIN-683 102.
BY ADVS.SRI.M.A.SHAFIK
SRI.SHEMEENA SALAHUDHEEN
RESPONDENTS :
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1. STATE BANK OF INDIA,
REPRESENTED BY THE CHAIRMAN,
CORPORATE OFFICE, MUMBAI.
2. THE CHIEF GENERAL MANAGER,
STATE BANK OF INDIA,
LOCAL HEAD OFFICE, THIRUVANANTHAPURAM.
R2 BY ADV. SRI.P.GOPAL
R2 BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-03-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 26107 of 2007 (G)
APPENDIX
PETITIONER'S EXHIBITS :-
EXT.P1 : COPY OF THE CIRCULAR P & HRD Sl.No.42/2005-06
DTD.29.4.05 ISSUED BY THE BANK.
EXT.P2 : COPY OF THE CIRCULAR P & HRD 247/2005-06
DTD.15.9.05 ISSUED BY THE BANK.
EXT.P3 : COPY OF THE LETTER No.HR/AGM-III-11 DTD.20.9.06
ISSUED BY THE ASST.GENERAL MANAGER, SBI.
EXT.P4 : COPY OF THE APPLICATION DTD.27.9.06 SUBMITTED
BY THE PETITIONER.
EXT.P5 : COPY OF THE LETTER No.AGM-OP-III-2401-11-113
DTD.9.12.06 ISSUED BY THE ASST.GENERAL MANAGER,
SBI.
EXT.P6 : COPY OF THE REQUEST DTD.27.11.06 OF THE
PETITIONER FOR VOLUNTARY RETIREMENT.
EXT.P7 : COPY OF THE LETTER DTD.5.1.07 RELIEVING
THE PETITIONER.
EXT.P8 : COPY OF THE REPRESENTATION DTD.5.1.07
SUBMITTED BY THE PETITIONER.
EXT.P9 : COPY OF THE LETTER DTD.25.1.07 ISSUED BY THE
2nd RESPONDENT.
EXT.P10 : COPY OF THE REPRESENTATION DTD.22.2.07
SUBMITTED BY THE PETITIONER.
EXT.P11 : COPY OF THE LETTER DTD.20.3.07 ISSUED BY THE
2nd RESPONDENT.
True copy
P.A. to Judge
ANIL K.NARENDRAN, J.
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W.P.(C)No.26107 of 2007
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Dated this the 24th day of March, 2017
JUDGMENT
The petitioner, who took voluntary retirement from the State Bank of India on 5.1.2007, while working as Manager is before this Court in this writ petition seeking a writ of mandamus commanding the respondents to accept his application made under Ext.P1 'Staff Supervising: Exit Option Scheme' (for brevity, 'Exit Option Scheme') for officers in the State Bank of India and to deem his retirement with effect from 5.1.2007 as one under the said Scheme with all consequential monetary benefits and to direct the respondents to pay the said benefits together with 18% interest; a writ of certiorari to quash Ext.P5 communication dated 9.12.2006 of the Assistant General Manager (Operations), State Bank of India by which it was found that he is not eligible to exercise 'exit option' in terms of Ext.P1 Scheme and Ext.P9 communication dated 25.1.2007 of the General Manager (HR), State Bank of India by which the decision communicated vide Ext.P5 was confirmed; and an order directing the respondents to reimburse the notice pay deducted from his retirement benefits.
2. The reliefs sought for in the writ petition are opposed by the respondents by filing a counter affidavit. The petitioner has filed a reply affidavit reiterating the contentions raised in the writ petition. The W.P.(C).No.26107 of 2007 2 respondents have filed an additional counter affidavit, which is followed by an additional reply statement filed by the petitioner.
3. I heard learned counsel for the petitioner and also learned Standing Counsel for State Bank of India representing the respondents.
4. The pleadings and materials on record would show that, the petitioner originally joined the services of the erstwhile Bank of Cochin Ltd. in the year 1978 as an Executive Trainee and he was confirmed in service in the year 1980. In August, 1985 Bank of Cochin was taken over by the State Bank of India and the petitioner was absorbed as an officer in the Junior Management Cadre. Thereafter, he was promoted to Senior Management Grade Scale-II (for brevity, 'SMGS-II') and then to Senior Management Grade Scale-III (for brevity, 'SMGS-III') of the officer's cadre as per the promotion policy of the State Bank of India, the 1st respondent Bank. In the year 2004, the petitioner was promoted to Senior Management Grade Scale-IV (for brevity, 'SMGS-IV') in the scale of pay of 24,140/-, with effect from 19.2.2004. The next promotion the petitioner can aspire for is to Senior Management Grade Scale-V (for brevity, 'SMGS- V'). The promotion to the said level is by way of competing in a written examination conducted in all India level.
5. The Central Board of the 1st respondent Bank in its meeting dated 24.3.2005 approved the Exit Option Scheme for the employees and officers of the Bank who feel frustrated and demotivated due to lack of W.P.(C).No.26107 of 2007 3 career prospects in the Bank. The Central Board have authorised the Chairman of the Bank for selective application of the Scheme and also authorised the Deputy Managing Director and Corporate Development Officer to modify and amend the Scheme. Accordingly, it has been decided that an Exit Option Scheme be introduced for officers in Middle Management Grade Scale-III (for brevity, 'MMGS-III') and above. In exercise of the authority delegated on him, the Deputy Managing Director and Corporate Development Officer has modified some of the provisions of the Exit Option Scheme, for the sake of meeting some legal issues as well as for operational clarity, and thereafter issued Ext.P1 Exit Option Scheme for Supervising Staff vide Circular No.COD/P&HRD-PM/8/2005-06 dated 29.4.2005, with immediate effect. Detailed provisions of the Exit Option Scheme and operative guidelines as approved by the competent authority were enclosed as Annexure-A to the said Circular. Para.3.e.(iv) of the said Circular makes it explicitly clear that, the Bank reserves the right to cancel any or all of the clauses and to give effect thereto from any dates it may deem fit, and to terminate the Scheme at any time.
6. Going by Annexure-A, the objective of the Exit Option Scheme is to bring overall reduction in the staff strength of the Bank by providing an exit route to the eligible officers from Top Executive Cadre Special Scale to MMGS-III who feel frustrated and demotivated due to lack of career prospects. Para.2 of the Scheme provides that, officers who are W.P.(C).No.26107 of 2007 4 over 50 years and below 58 years as on the date of application, who have not been promoted to the next higher grade/scale within 4 chances and were also superseded by their juniors shall be eligible for 'exit option' in terms of Ext.P1 Scheme. The number of chances for non-promotion will be counted in the present grade only and non-promotion, if any, in the previous grade will not qualify for counting the 4 chances for non- promotion. For this purpose, a chance shall mean that the officer has completed the required service in the present grade for consideration of further promotion but has either not been considered for any reason or has been considered and not promoted and, thus, has been superseded by his juniors. An officer will also be deemed to have missed a chance and superseded by his juniors, if he does not appear for interview or abstains himself from participating in the promotion exercise or where he had given his refusal in writing for promotion to the next higher grade or scale or remains absent or submits medical certificate for the date of interview and in the process officials junior to him are promoted and become senior to him. The officer who was in the zone of consideration but was not included in the zone of selection would also be taken as having missed an opportunity or chance for promotion.
7. Para.5(i) of the Scheme provides that, an officer desirous of exercising 'exit option' shall apply in the prescribed format (Annexure-I) within 3 months of becoming eligible. All the eligible officers as on the W.P.(C).No.26107 of 2007 5 date of the said Circular, who desire to exercise 'exit option' must apply on the prescribed format on or before 31.7.2005. Para.6 of the Scheme provides further that, an officer opting for 'exit option' shall have to give 3 months' notice and that, salary in lieu of shortfall in notice period will not be accepted. On acceptance of an officer's application by the designated authority, to approve his release under 'exit option' his date of relieving from service will be decided by the Controller in keeping with the administrative exigencies/convenience and he will be advised in writing. The officer can withdraw the application for 'exit option' till the last date of his service in terms of approval of 'exit option' conveyed to him by the Bank. Para.8 of the Scheme makes it explicitly clear that, the Exit Option Scheme is voluntary in nature. However, the designated authority, as specified in Para.15 of the Scheme, will have the sole discretion as to the acceptance or rejection of the request for release under 'exit option'. Therefore, the officers cannot claim it as a matter of right. The acceptance or non-acceptance of an officer's application will be subject to the decision of the designated authority thereon, which will be finial and communicated to the officer in writing, after due scrutiny, and that the Bank retains the discretion to limit the number of officers who may be allowed to exit under the Scheme in each grade. If the number of applications received is more than the anticipated number, the Deputy Managing Director and Corporate Development Officer, being the competent authority shall determine the W.P.(C).No.26107 of 2007 6 cut-off age in each grade. Para.12 of the Scheme deals with the general conditions for 'exit option'.
8. The Executive Committee of the Central Board of the 1st respondent Bank in its meeting held on 10.9.2005 approved the proposal to modify some of the provisions of the Exit Option Scheme as contained in Ext.P1. Accordingly, the Deputy Managing Director and Corporate Development Officer of the 1st respondent Bank issued Ext.P2 Circular No.COD/P&HRD-PM/2005-06 dated 15.9.2005, extending the Scheme to all officers in Junior Management Grade Scale-I (for brevity, 'JMGS-I') and above, to whom State Bank of India Officers' Service Rules, 1992 are applicable.
9. As per the modified Exit Option Scheme in Ext.P2, the minimum age limit of 50 years has been reduced to 45 years. The stipulation of having missed 4 chances of promotion in the existing grade has been reduced to missing only 1 chance of promotion in the existing grade. Therefore, officers who have not been promoted to the next higher grade/scale after availing one chance and were superseded by their juniors shall be eligible for 'exit option'. Since the number of chances for non-promotion will be counted in the present grade only, non-promotion, if any, in the previous grade will not qualify for counting the one chance of non-promotion. The requirement of submitting application within 3 months of becoming eligible for 'exit option' has been done away with and after W.P.(C).No.26107 of 2007 7 Ext.P2 Circular the officers can submit the application at any time during the existence of the Exit Option Scheme, provided they are otherwise eligible under the Scheme as on the date of submission of application. An officer opting for 'exit option' shall have to give a minimum of 3 months' notice. However, the notice period should not exceed 4 months in any case and salary in lieu of shortfall in notice period will not be accepted.
10. As provided in the Exit Option Scheme, a review of the Scheme as on 31.3.2006 was made in which it was felt that sufficient opportunity has already been given to those officers who wanted to leave the Bank because they did not find good prospects on account of non- promotion. Taking into consideration the above fact and on reviewing the implementation of the Exit Option Scheme, the Executive Committee of the Central Board of the 1st respondent Bank in its meeting held on 20.7.2006 decided that, for the present the Exit Option Scheme for officers be withdrawn and kept in abeyance with effect from 1.11.2006. Therefore, those eligible officers who are desirous of applying for 'exit option' may submit their applications till 31.10.2006, for release from Bank's service within 3 to 4 months of the date of their application, as per the provisions of the Scheme. It was made clear that, no application under the Exit Option Scheme shall be entertained from the officers after 31.10.2006 till the said Scheme is revived again by the appropriate authority. The Executive Committee of the Central Board decided further W.P.(C).No.26107 of 2007 8 that, the Central Human Resources Committee be delegated with the authority to reintroduce the Exit Option Scheme for officers in its present form as and when required in future. The said decision taken by the Executive Committee of the Central Board was brought to the notice of all concerned vide Ext.P2/4 Circular No.CDO/P&HRD-PM/19/2006-07 dated 26.7.2006 of the Deputy Managing Director and Corporate Development Officer of the 1st respondent Bank.
11. As already noticed, the next promotion the petitioner can aspire for is to SMGS-V, and promotion to the said level is by way of competing in a written examination conducted in all India level. Since the petitioner has become eligible to appear for the written examination for promotion to SMGS-V for the year 2006-07 under Fast Track Channel, he was issued with Ext.P3 call letter dated 20.9.2006 requiring him to appear for the written examination scheduled to be held on 24.9.2006. After abstaining himself from participating in the written examination conducted on 24.9.2006, the petitioner submitted Ext.P4 application dated 27.9.2006 to relieve him from the service of the 1st respondent Bank under Ext.P1 Exit Option Scheme, with effect from 31.12.2006.
12. The petitioner made Ext.P4 application for 'exit option' stating that, since he had abstained himself from the written examination conducted on 24.9.2006, he should be deemed to have missed a chance for promotion and as such, he is eligible for being considered for 'exit W.P.(C).No.26107 of 2007 9 option' in terms of Para.2(ii)(c) of the Exit Option Scheme. The said request was turned down in Ext.P5 communication dated 9.12.2006 of the 1st respondent Bank, for the reason that officers who are not superseded by juniors on account of their missing a promotion chance in the present grade are not eligible to exercise 'exit option'.
13. When the petitioner came to know that the 1st respondent Bank is not going to approve Ext.P4 application made for 'exit option', he made Ext.P6 application dated 27.11.2006 seeking voluntary retirement from the service of the Bank with effect from 31.12.2006. Since Ext.P4 application for 'exit option' was made on 27.9.2006, the petitioner requested in Ext.P6 that, in case of non-approval of the request made for 'exit option', the period from 27.9.2006 to 27.11.2006 may be reckoned towards the notice period required for an application seeking voluntary retirement and he may be relieved from service with effect from 31.12.2006. Based on Ext.P6 application, the petitioner was called for an 'exit interview' on 15.12.2006. The petitioner attended the interview and vide Ext.P7 communication dated 5.1.2007 he was permitted to be relieved from service, with effect from 5.1.2007, subject to recovery of pay in lieu of notice from his terminal benefits.
14. In the meantime, the 1st respondent Bank completed the exercise for promotion to SMGS-V for the year 2006-07 under Fast Track Channel. The result of the written test was declared on 25.11.2006, and W.P.(C).No.26107 of 2007 10 the final result after interview was declared on 28.12.2006. The said facts are admitted in Para.4 of the writ petition, wherein it has been stated as follows;
".... Since the petitioner intended to apply for voluntary retirement under Ext.P1 Scheme, the petitioner abstained from the examination on 24.9.2006. The result of the written test was declared on 25.11.2006, and the final result after interview was declared on 28.12.2006. Exit Option Scheme was withdrawn on 31.10.2006."
15. Feeling aggrieved by the rejection of the request for 'exit option' (vide Ext.5) and recovery of pay in lieu of notice from the terminal benefits (vide Ext.P7), the petitioner submitted Ext.P8 representation dated 5.1.2007, which was rejected by Ext.P9 communication dated 25.1.2007 stating that, he did not meet the eligibility criteria stipulated under the Exit Option Scheme and as such, he was permitted to retire from service as per the provision for voluntary retirement, which is outside the purview of the Exit Option Scheme. Feeling aggrieved by Ext.P9, the petitioner submitted Ext.P10 representation dated 22.2.2007 seeking reconsideration of his request in Ext.P8, which was also rejected by Ext.P11 communication dated 20.3.2007.
16. Therefore, the issue that arises for consideration in this writ petition is as to the eligibility of the petitioner as on 27.9.2006 to submit Ext.P4 application for 'exit option' under the Exit Option Scheme in Ext.P1, as modified by Ext.P2. Admittedly, the Exit Option Scheme was withdrawn W.P.(C).No.26107 of 2007 11 vide Ext.P2/4 Circular dated 26.7.2006, with effect from 31.10.2006. According to the petitioner, since he had abstained himself from the written examination conducted on 24.9.2006, he should be deemed to have missed a chance of promotion, and hence he is eligible for being considered for 'exit option' in terms of Para.2(ii)(c) of the Exit Option Scheme.
17. Para.2 of the Exit Option Scheme in Ext.P1, as modified by Ext.P2, deals with eligibility of an officer to make an application for 'exit option'. As per Para.2, the officers who have not been promoted to the next higher grade/scale after availing one chance and were also superseded by their juniors shall be eligible for 'exit option'. For the said purpose, a 'chance' shall mean that, the officer has completed the required service in the present grade for consideration of further promotion but has either not been considered for any reason or has been considered and not promoted and, thus, has been superseded by his juniors. As per Para.2(ii)(c) of the Scheme, an officer will also be deemed to have missed a chance and superseded by his juniors if he does not appear for interview or abstains himself from participating in the promotion exercise or where he had given his refusal in writing for promotion to the next higher grade or scale or remains absent or submits medical certificate for the date of interview and in the process officials junior to him are promoted and becomes senior to him. The officer who W.P.(C).No.26107 of 2007 12 was in the zone of consideration but was not included in the zone of selection would also be taken as having missed an opportunity or chance for promotion.
18. Going by the provisions under Para.2 of the Scheme, in order to become eligible to make an application for 'exit option', the officer should have missed one chance of promotion in the existing grade and also superseded by his juniors. Therefore, an officer, who missed one chance of promotion in the existing grade will become eligible to apply for 'exit option' only if he is superseded by his juniors as on the date of such application, i.e., the officials junior to him are promoted in that process and they become senior to him as a result of such missing of a chance of promotion. In that view of the matter, in order to become eligible for 'exit option', not only should the petitioner have missed one chance of promotion in the existing grade but also his juniors should have been promoted and become senior to him, as on the date of Exr.P4 application for 'exit option'. Therefore, the contention of the petitioner that, since he had abstained himself from the written examination conducted on 24.9.2006, he should be deemed to have missed a chance of promotion, and hence eligible for being considered for 'exit option' in terms of Para.2
(ii)(c) of the Exit Option Scheme, can only be rejected.
19. Going by Para.5(1) of the Exit Option Scheme in Ext.P1, as modified by Ext.P2, an officer desirous of exercising 'exit option' shall W.P.(C).No.26107 of 2007 13 apply in the prescribed format (Annexure-I) at any time during the existence of the Scheme, provided he is otherwise eligible under the Scheme as on the date of submission of application. Going by Para.6(1), an officer opting for 'exit option' shall have to give 3 months' notice and salary in lieu of shortfall in notice period will not be accepted. In the instant case, as on the date of Ext.P4 application seeking 'exit option', i.e., as on 27.9.2006 the petitioner was not superseded by any officials junior to him. The result of the written test conducted on 24.9.2006 was declared only on 25.11.2006. Thereafter, the final result after interview was declared only on 28.12.2006. Therefore, as on the date of submission of Ext.P4 application, the petitioner was not eligible under the Scheme for making an application for 'exit option'.
20. Admittedly, the Exit Option Scheme was withdrawn with effect from 31.10.2006, vide Ext.P2/4 Circular dated 26.7.2006. The said Circular makes it explicitly clear that, no application under the Exit Option Scheme shall be entertained from the officers after 31.10.2006 till the said Scheme is revived again by the appropriate authority. Therefore, supersession, if any, occurred in the case of the petitioner after 31.10.2006 would not make him eligible to maintain an application for 'exit option'. In that view of the matter, the stand taken by the respondents in Exts.P5, P9 and P11 while rejecting the request made by the petitioner for 'exit option' is perfectly legal, which warrants no W.P.(C).No.26107 of 2007 14 interference in this writ petition.
21. Now, the remaining issue that arises for consideration is as to the legality of recovery of pay in lieu of notice from the terminal benefits of the petitioner ordered vide Ext.P7, while sanctioning the request for voluntary retirement made in Ext.P6 application dated 27.11.2006. The petitioner requested in Ext.P6 that, in case of non-approval of the request made in Ext.P4 application dated 27.9.2006 for 'exit option', the period from 27.9.2006 to 27.11.2006 may be reckoned towards the notice period required for an application seeking voluntary retirement and he may be relieved from service with effect from 31.12.2006.
22. Rule 19 of the State Bank of India Officers' Service Rules, 1992 deals with the retirement of an officer of the 1st respondent Bank. As per Rule 19(1), an officer shall retire from the service of the Bank on attaining the age of sixty years or upon the completion of thirty years' service or thirty years' pensionable service, if he is a member of the Pension Fund, whichever occurs first. However, going by the fourth proviso to Rule 19(1), an officer who has completed twenty years' service or twenty years' pensionable service, as the case may be, may be permitted by the competent authority to retire from the Bank's service, subject to his giving three months' notice in writing or pay in lieu thereof, unless this requirement is wholly or partly waived by it. W.P.(C).No.26107 of 2007 15
23. Since the requirement of giving three months' notice in writing or pay in lieu thereof was not waived wholly or partly by the 1st respondent Bank, in order to seek voluntary retirement under the fourth proviso to Rule 19(1), the petitioner is required to give three months' notice in writing, failing which he is liable for three months' notice pay. Ext.P4 application dated 27.9.2006 submitted by the petitioner for 'exit option' under the Exit Option Scheme cannot be treated as a notice for voluntary retirement in terms of the fourth proviso to Rule 19(1) of the Rules, especially when the petitioner was not eligible to make such an application for 'exit option' as on the date of submission of Ext.P4. In such circumstances, once the petitioner is permitted to be relieved from the service of the 1st respondent Bank with effect from 5.1.2007, based Ext.P6 application dated 27.11.2006 for voluntary retirement, he is bound to pay notice pay for the remaining period, i.e., for the period from 6.1.2007 to 27.2.2007. In that view of the matter, the respondents cannot be found fault with in sanctioning the request made by the petitioner in Ext.P6 application for voluntary retirement, only subject to recovery of pay in lieu of notice from his terminal benefits for the remaining period. Therefore, the stand taken by the respondents in Exts.P9 and P11 while rejecting the challenge made by the petitioner against recovery of pay in lieu of notice from his terminal benefits is perfectly legal, which also warrants no interference in this writ petition.
W.P.(C).No.26107 of 2007 16
In the result, I find absolutely no merit in the various contentions raised in the writ petition. The writ petition fails and the same is accordingly dismissed. No order as to costs.
Sd/-
ANIL K.NARENDRAN, JUDGE skj True copy P.A. to Judge