Andhra HC (Pre-Telangana)
Canara Bank Officers Congress, Rep. By ... vs The Govt. Of India, Rep. By Its ... on 26 February, 1996
Equivalent citations: 1996(2)ALT459
ORDER G. Bikshapathy, J.
1. The Canara Bank Officers Congress represented by its Secretary filed the present Writ Petition challenging the Memo No. 31/93 dated 2-3-1993 issued by the 2nd Respondent in respect of promotion policy for the years 1991 to 1994 from the cadre of Junior Management Grade Scale-I(J.M.G.S-I) to Middle Management Grade Scale -II (M.M.G.S-II) and Middle Management Grade Scale-II to Middle Management Grade Scale-III(M.M.G.S.-III) as arbitrary and illegal.
2. The facts leading to the Writ Petition are that the petitioner is a Trade Union and affliated to Indian National Banks Officers Congress. The Apex body of the Banks in the country recognised only three AH India Officers Organisations out of four for the purpose of negotiation with regard to the service conditions of the Banks Officers. Though the petitioner union is affiliated to the recognised union at All India Level, yet it is not allowed to participate by the local level management. Ineffect the contention is that it is not treated as recognised union for the purpose of various settlements and agreements, though it represents about 20% of Officers. The petitioner contends that the policy was evolved by the Bank without consulting the petitioner union and therefore the said policy is illegal and arbitrary. Further, no guidelines have been stipulated in the said promotion policy.
3. The service conditions of the Canara Bank Officers are governed by the Canara Bank (Officers') Service Regulations, 1979, for brevity Service Regulations. Regulation 17 governs the promotion of the Officers. The said regulation also stipulates that the policy laid down by the Board from time to time shall be in-consonance with the guidelines issued by the Government. Under Regulation 17, the Board is empowered to formulate the eligibility criteria and details of the process to be employed for promotion. The policy should be evolved not latter than six months from the appointed date.
4. The minimum eligibility criteria for promotion from J.M.G.S-I to M.M.G.S-II is seven years service as Junior Management Grade Scale-I Officer; out of said period, two years shall be in the rural branches. Similarly, in espect of promotion from M.M.G.S-II to M.M.G.S-III five years service with minimum three years of service in the rural branch. Therefore, under the aforesaid regulations, the service in the rural branch is an essential criteria for considering the cases of the officers for promotion to the higher post, It is the grievance of the petitioner that this rule was observed more in breach than in practice. In most of the cases the persons, who did not fulfil the rural service criteria have been promoted with a post promotion condition that they shall serve the rural branches for period of two years. Even before the approval of the competent authorities is obtained, the selections were conducted. It is further stated that the Government, has no power to relax this condition. Even otherwise, it cannot " be annual feature and the very purpose of granting relaxation under special and Extra-ordinary circumstances is frustrated. In respect of the promotions for 1991 an agreement was entered with the Canara Bank Officers Association. However, the Government has not granted exemptions in respect of rural service.
5. It is nextly submitted that the prescribed ration of vacancies and the eligible candidates has to be strictly complied with in accordance with the Regulation 17(5). The said Regulation prescribed that the consideration must be confined to three or four times to the number of posts. However, the consideration can exceed in case of exceptional circumstances duly recording the reasons. It is the petitioner's case that the zone of consideration was more than ten times and therefore, there is a violation of regulation itself. The promotion policy is revised from time to time, thereby it is made biannual or triannual feature.
6. The petitioner further submits that the promotion policy introduced two channels of promotion one is Test channel and another is interview channel. The total number of posts were divided equally. The grievance of the petitioner is that no such division has been stipulated in the regulation and therefore introducing two channels for the promotion is illegal and unjust. Alternatively also, it is submitted by the petitioner that the system of appraisal of the service record is completely misconceived. It gives room for making manipulation to suit the purpose. Therefore, the promotion affected on such performance appraisal is illegal and unsustainable.
7. In the counter affidavit filed by Respondent No. 1, it is stated that the petitioner Union does not represent more than 4% of the strength of the officers and therefore it has no locus standi to file Writ Petition. The petitioner filed W.P.No. 3462/90 before the High Court of Madras during the year 1990 on similar and identical grounds and by judgment dated 11-7-1990 the Writ Petition was dismissed holding that the policy adopted by the bank was fail and valid. Since, the promotion policy for 1991, 1992 and 1993 was same and such a policy having been challenged before the Madras High Court it is not open for the petitioner to again challenge the said policy in this Writ Petition, before this Court. With regard to the representative capacity of the petitioner, the same issue was decided by the Madras High Court against the petitioner. It is submitted by the 2nd respondent that before promotion policy is evolved it was discussed with the recognised union hand only after the concensus was arrived, the policy was issued. Holding discussion with all the unions was held to be impracticable as decided by this Court in W.A.N No. 720/90.
8. The Bank submits that the promotion policy for 1991, 1992 and 1993 was evolved during the year 1990. Though, there is a stipulation in the regulation regarding the rural service, yet in some cases, it was not followed as the officers could not complete the rural service on account of not posting them to the rural branch. It was not administratively possible to ensure all the Officers who are in the Zone of consideration to acquire the rural service qualification. Therefore, the Government was approached in this regard and exemption was obtained. However, while issuing the promotion orders, a post promotion condition was stipulated that they shall serve the rural branches. In view of the large number of officers falling in the Zone of consideration and who have not completed required rural service due to administrative reasons, the bank has to treat that condition of rural service only as a post promotion condition. That the action of the Bank in this regard cannot be said to be illegal or arbitrary.
9. With regard to the Zone of consideration, the bank submits that normally it is restricted to three or four times of posts, available, but however in. exceptional cases, the Board may relax this criteria.
10. In respect of promotion channels, the bank submits that option is given to the employee to choose the channel in which he will find himself most suitable. Therefore, wider scope was given to the employees and it provides adequate opportunities to the competent officers to demonstrate their potential for selection. It is further stated that the chances of promotion are not conditions of service and that the employee has a right to be considered for promotion. The bank had been following the evaluation of the promotion post on the confidential reports for the last two decades. However, in the year 1981 a new system of appraisal was introduced, which is equally effective and a result oriented. A comprehensive system is adopted by the bank to evaluate the performance of the officers. Thus, the 2nd respondent submits that there are no merits in the Writ Petition it has to be dismissed.
11. Let us consider the statutory position with regard to the power of the Bank to frame promotion policies. In exercise of powers conferred by Section 19 read with Sub-section (2) of Section 12 of the Banking Companies (Acquisition & Transfer of Undertaking) Act 1970 (Central Act 5 of 1970), the Board of Directors in consultation with the Reserve Bank of India and with the previous sanction of the Central Government, framed the Canara Bank (Officers) Service Regulations. They came into effect from 1-7-1979. Chapter IV deals with the appointment, probation, confirmation, seniority and termination. Regulation 17 deals with the promotion. It reads thus:
"Promotions: 17(1) Promotions to all grades of Officers in the Bank shall be made in accordance with the policy laid down by the Board from time to time having regard to the guidelines of the Government, if any.
(2) For the avoidance of doubts, it is clarified that this Regulation shall also apply to promotions of any category of employees to the Junior Management Grade"
The guidelines issued by the Government in terms of proviso to Regulation 17, have been appended as Annexure 5, which are extracted below to the extent relevant:
'The following guidelines are issued by the Government in terms of proviso to Regulation 17 of the Canara Bank Officers' Service Regulations, 1979.
(1) The Board shall formulate the eligibility criteria and details of the processes to be employed for promotion of Officers from one scale/ grade to another, subject to the following provision. This should be done not later than six months from the appointed date. Till such time as the new promotion policy is formulated, the Bank may, subject to the approval of the Board, continue with the existing promotion practices.
(2) Subject to the availability of vacancies and the eligibility criteria given below, all promotions whether from one scale to another or one grade to another shall be one the basis of merit with weightage if any, for service record, educational /professional qualifications, etc. as may be prescribed by the Board from time to time, except that the Board shall not provide any weightage for seniority.
(a) FROM JUNIOR MANAGEMENT GRADE SCALE-I TO MIDDLE MANAGEMENT GRADE SCALE-II 7 years of satisfactory service in Junior Management Grade Scale-I provided that the Officer has put in a minimum of 2years service in rural branch- As legards Specialist Officer, he should take the requisite rural branch experience as and when he switches over to the main stream of banking.
NOTE:
The proviso to the above guidelines will become operative in respect of promotions to be made w.e.f. 1-6-1988"
12. Similarly in respect of promotion from M.M.G.S-II to M.M.G.S-III, S.M.G.S-IV and above the regulation has been made. As can be seen from the note, the proviso i.e. rural or semi-urban service was introduced for the first time. A minimum of 2 years and 3 years of rural service should have been put up by the officer for the post of M.M.G.S-II and M.M.G.S-III respectively. The revised guidelines incorporating compulsory rural service were issued in 1985 by the Central Government and proviso to the guidelines will come into operation w.e.f. 1-6-1988. Therefore, 2nd respondent issued circular dated 15-5-1985 bringing to the notice of concerned officers and advised them to apply for rural posting if they had not acquired them to apply for rural posting if they had not acquired already so as to get the eligibility. The relevant paras are extracted below:
"(A) From Scale-I to II:
Eligibility for promotion from Junior Management Grade Scale-I to Middle Management Grade Scale-II - 7 years of satisfactory service in Junior Management Grade Scale-I, provided the officer has put in a minimum of two years service in a rural branch.
NOTE: The proviso to the above guideline will become operative in respect of promotions to be made w.e.f. 1-6-1988 (B) From Scale-II to III:
Eligibility for promotion from Middle Management Grade Scale-II to Middle Management Grade Scale-Ill - 5 years of satisfactory service in Middle Management Grade Scale-II, provided that the officer concerned has put in a minimum service of 3 years as an officer in a "rural" and/or 'semiurban' branch.
NOTE: The proviso to the above guideline will become operative w.e.f. 1-6-1988.
In the light of the above revised guidelines, Officers are requested to note that a minimum of 2 years of service as an officer in a rural branch and a minimum of 3 years of service as an officer in a rural and /or semi-urban branch is a must for eligibility for promotion from Scale-I to II and III respectively besides minimum number of prescribed years of service in the scale in which they are placed.
Officers in Scale-I & II who have not served in rural / semi-urban places for the prescribed period are requested to note the above and represent in the enclosed proforma on or before 31-5-1985 to staff Section (O) of Circle Office concerned for providing opportunity for working in rural places in case of officers in Scale-I and rural/semi-urban places in case of officers in Scale-II so that they would not become ineligible for consideration for promotion to higher scale to be made after 1-6-1988. The officers may indicate the State/States in which they would prefer such posting, which will be for a minimum period of two or three years. Staff Section (O) Circle Office will as far as possible provide opportunity to all officers keeping in mind administrative needs and suitability. Choice of states does not mean commitment by bank to provide one of those. It will depend on availability of vacancies in such states. It may be noted that for promotions to be made after 1-6-1988 or thereafter whichever date applicable in our bank if they do not conform to the norms for eligibility on account of not serving in rural/semi urban places for the prescribed period, they would become ineligible for consideration for promotion to higher scale"
13. On the basis of the aforesaid provisions, the learned Counsel for petitioner Mr. Satyanarayana Prasad submits that the 2nd respondent had permitted all the officers without reference to the rural service requirement and thus violated not only the regulations, but also the guidelines issued by the Central Government. The imposition of condition by the Bank while promoting the officers without rural service, that they should complete the same after the promotion, does not satisfy the requirement of law. Pre-promotion condition cannot be relegated to post-promotion condition. Such a power is not available to the Bank. Hence he submits that all those officers who are selected in 1991 and thereafter without the rural service qualification should be reverted and the eligible officers may be promoted, he relies on the judgment of learned Single Judge of this Court in K. Ramesh Babu and Ors. v. State Bank of Hyderabad and Ors.
, . The learned counsel for the Bank Mr. Gopal Reddy does not dispute requirement of rural service. But, however, he submits that due to administrative exigencies, the Bank could not post all the eligible officers to rural or semi-urban areas. Therefore for the inability of the Bank the Officer should not be denied the promotion. He further submits that the Bank obtained the relaxation in respect of rural service from the Government of India and hence the promotion cannot be said to be illegal or arbitrary.
14. I have given my anxious consideration to the issue. As can be seen from the resume of events, the Government of India issued guidelines, in the year 1985 imposing compulsory rural service in respect of promotion after 1-6-1988. The promotion policy has to be framed by the Bank under Regulation 17, and it has to be in conformity with the guidelines issued by the Government. Hence the promulgation of promotion policy is a statutory obligation. Since the promotion policy shall be in conformity with the guidelines, the said guidelines shall also have the same status on par with promotion policy. Thus, the guidelines issued by Government form integral part of the promotion policy. The tenor of the circular dated 15-5-1985 clearly indicate that those who did not possess the rural service would become ineligible for consideration for promotion to higher grade.
15. In Ramesh Babu case, , the same condition of rural service was the subject matter. An officer of the S.B.H. challenged the promotion of another colleague officer on the ground that he did not possess the rural service and hence he ought not to have been considered. However, in the said case the Bank made ad hoc regulations pending promotion policy in terms of Regulation 17 of S.B.H. Officers Promotion Regulations, 1978. But in the instant case fulfledged regulations were framed with the statutory requirement. The guidelines issued by the Government of India under Regulation 17 are one and the same to all the Banks. The policy is required to be framed by each Bank separately. While 1. , formulating the policy the Bank has to necessarily include rural service requirement for promotions as is done in this case also. The Bank sought to place the same explanation viz., administrative difficulties. The learned Judge repelled the contention of the Bank and observed thus :
"The explanation of the respondent-bank is that it has issued circular dt 12-2-1987 to the effect that rural service for two years would be an eligibility criterion for promotion with effect from 1st June, 1988 and the circular specially mentioned that the bank had initiated steps to post officers to complete the requisite rural service, in some cases, it could not provide post to such rural and semi-urban areas immediately due to administrative difficulties. It is stated that considerable number of officers otherwise suitable for being considered for promotion from JMGS-I to MMGS-II could not complete the stipulated 2 years of rural/semi-urban service, that this resulted in a number of officers not completing rural service by 1st August, 1989, and it was because of this anxiety that some of the candidates who had not completed two years of rural service were also considered and their posting was deferred till the completion of that requirement."
The learned Judge held, at para 13 as follows:
"Having stipulated this condition in exercise of the statutory power, was it open for the respondent bank-Board of Directors or the Executive Committee-to favour persons who had not acquired the necessary eligibility criteria? Was it open for the bank to admit persons who were not eligible in terms of the promotion policy to appeal for the test and other processes for selection leading to promotion to MMGS-II. I have no doubt that if the circulars dt. 12-2-1987 and 10-5-1989 spelt out a promotion policy which was promulgated in exercise of the Power under Clause 17 of the Staff Regulations, the respondent-Bank was bound to act only in accordance with the terms of the above promotion policy. It was bound to disqualify such of the officers who had not completed the rural service for a period of two years as on the relevant date viz., 1st June, 1989"
16. It has been held by the Supreme Court in catena of decisions that the Regulations framed pursuant to a statute shall have the statutory force. The consequency to breach of such Regulations can be successfully assailed before the Courts. When the Qualifications for the promotion to the post are prescribed under the Statutory rules, it is necessary that the employee should fulfil the eligibility condition before he is considered for promotion. (See: Vidyadar Pande v. Vidyutkgrih Siksha Samithi and Ors., , R. Prabha Devi v. Govt. of Indi, .
17. In view of the above pronouncements, it is necessary that promotion of the officers are governed by Regulation 17 and the Policy was issued by the Bank by virtue of the powers conferred under Regulation 17. Therefore, unless the Officer acquires the necessary qualification of rural service, he cannot be placed in the zone of consideration. The learned Single Judge of this Court quite aptly held that:
"exemption of obligatory requirement for promotion in favour of those who ought to have been disqualified is clearly arbitrary and illegal"
As can be seen, the guidelines were issued by the Government of India in 1985 itself and the Circulars issued in pursuance of the guidelines were issued by the Bank in the same year. Therefore, every officer is expected to have the knowledge of rural service. That is the reason, this condition was sought to be implemented after 1-6-1988, so that the officers can complete their rural assignments. More over by the time the promotions were made in 1991, six years had elapsed and it cannot be said that even by the expiry of the six years, the Bank could not allow the officers to complete the rural service. Even the Bank had issued circular on 15-5-1985 asking the officers to choose their rural posting otherwise they will be ineligible for promotion.
Therefore, I am of the opinion that the promotions effected by the Bank in respect of the Officers, who did not fulfil the rural service criteria, cannot beheld to be valid.
18. It is nextly contended by the learned counsel for the Bank that the judgment of the learned Single judge is pending in appeal and hence it cannot be taken into consideration. I am afraid, 1 cannot accept it. Simply because the matter is in appeal, it cannot be said that the decision is not valid. Moreover, in the instant case the administrative reasons are to acceptable as either the Bank could have issued rural posting or the officers should have opted for rural service in pursuance of circular 15-5-1985. The post ratification action of the bank cannot be said to be valid. Equally, the officers found to be ineligible for promotion cannot be rewarded with promotion.
19. Sri Gopal Reddy, further submits that the Government of India had granted relaxation to the Bank for the requirement of rural service and hence the Bank is justified in promoting the Officers to higher grade. It is true the bank had granted the relaxation from 1988 ever year with the same wording. The contents of the orders are rather curiously worded. The order says that it is one time relaxation and goes on repeating the same every year. The extract of the relevant para is as follows:
"I am directed to refer to your letter No. P&I WPM: 2731:71: RNS dated 13-3-1992 on the above subject and to say that the Government have no objection in consideration of officers who have not completed the requisite rural/semi-urban experience for promotion to Scale-Il and Scale-Ill subject to their giving an undertaking that an promotion they will be straightaway posted to rural/semi-urban areas and the conditions laid down in our letter or evennumber dated: 18-4-1990.
It may be noted that this is a specific relaxation for the promotion process to be understand taken by the Bank during 1992 and may not be quoted as a precedent for future promotion process"
20. The relaxation of rules is granted in exceptional circumstances to meet a particular contingency. The power of relaxation should be specifically conferred by the statute on the authorities. It cannot be inferred from the rules. Therefore, in the absence any specific power of relaxation under the said regulations, the guidelines issued by Govt. ought to be implemented. The relaxation cannot be treated as a matter of course and it cannot be made annual feature. Purporting to exercise the power of relaxation, the pre-promotion condition cannot be converted into a post promotion condition. Even if there is any such power, this Court held that the exemption of obligatory requirements for promotion in favour of those who ought to have been disqualified is clearly arbitrary and discriminatory. Thus, the inevitable conclusion is that the plea of inability of the Bank to send all the eligible officers to rural service due to administrative exigency does not sound to reason. The violation of promotion policy by the Bank cannot be cured by imposing a post-promotion condition. The result would be that the promotion of all the officers who did not possess rural service is liable to be set aside.
CONSULTATION WITH ASSOCIATIONS/UNIONS
21. The learned Counsel for the Respondent submits that is entitled to consult only recognised union and to consult all other existing Trade Unions in the organisation, it is neither feasible nor practicable. Hence, the promotion policy evolved after consultation with the recognised union is beyond the pale of challenge. In support of this contention, he relies on the judgment of Calcutta High Court reported in Reserve Bank of India v. All India Reserve Bank Workers Organisation, 1994 (2) CLR 86. In that case the binding nature of the settlement entered by the recognised union was under consideration. One of the contentions before the Court was that the unrecognised union was not given any representation during the time of negotiations and therefore the settlement was bad. The Court while repelling the submission of the unrecognised union, held that the unrecognised union cannot claim right of representation in the negotiation with Bank. However, it does not preclude such an unrecognised union from making any demand and the Bank is required to discuss and negotiate. In what circumstances and in what manner the demands would be considered on the method and manner of procedure and negotiation were left to the discretion of the management.
22. In Re- United Commercial Bank Officers Congress, 1989(1) Calcutta High Court Notes, the learned Single Judge was dealing with the right of representation of the Union. There were three unions. The promotion policy was finalised consulting two unions only. The 3rd union challenged the same as being arbitrary, and violative of principles of natural justice. The learned Judge held that the third union also should have been given the opportunity of representation and the view points of the union could have been heard.
23. The regulations do not provide consultation with the union. It is only with a view to have the consensus on the question of policy, the union was consulted, but that does not mean that the policy is valid and it is immune from challenge, however, arbitrary itself. The constitutional validity of a particular statute or the policy carved out by virtue of the statutory powers, can be tested on the touch stone of Article 14. If the policy is found to be arbitrary offending Articles 14 and 16, this Court has the powers to strike down such a policy. Therefore, the contention that when once the policy is framed after consulting a particular union(recognised union), the other non-recognised union or for that matter minority union or individual officers cannot challenge the policy is wholly misconceived.
24. The learned Counsel also submits that the very same petitioner Union filed W.P.No. 3462 of 1990 before the Madras High Court challenging the promotion policy issued in 1989 for filling up the posts that arose in 1990. The said Writ Petition was dismissed. Hence, the present Writ Petition with the same allegations and same contentions is barred by principles of res judicata.
25. As can be seen from the order of the Madras High Court, the policy announced by the bank during the relevant period created two channels namely 1) with weightage for service (called as normal channel) and 2) without weightage marks for service (called fast channel). Therefore, the two tracks represented normal track and fast track denoting that the normal channel for promotion is by means of seniority and merit white the fast track denotes purely merit. In that system 25% of the vacancies were reserved for merit track while 75% was reserved for seniority track. The policy was under attack by Union. In the instant case, the test channel and interview channel have been provided. 50% of posts are set apart for each of the channel. These channels do not represent neither merit nor seniority. The Madras High Court dismissed the Writ Petition on the ground that there was no arbitrariness in creating two channels.
CREATION OF PROMOTION CHANNELS
26. The next issue that arises for consideration is whether the Bank is justified in creating two channels of promotion from among the same category of Officers. As per the promotion policy issued by the Bank vide its circular dated 20-12-1990, it is seen that the minutes were drafted after consulting the Union. The policy was finalised for 1991,1992,1993. As per para 8 of the policy, the mode of promotion is created through two channels, one is test channel, another in Interview channel. The vacancies shall be filled in the ration of 1:1. In respect of test channel, the officer is required to undergo written test carrying 100 marks. He is required to obtain not less than 40 marks for placing him in the zone of consideration for promotion. Thus, the primary ingredient in this channel is that the employee should at least get 40 marks( in respect of SC and ST 35 marks) before he swims into the zone of consideration. 27 marks are ear-marked for performance appraisal and 3 marks are set apart for leave record. The ranking of officers who are successful in the test shall be drawan taking into account the performance appraisal marks and leave marks. Thus, even though the officers get marks ranging from 40 to 100 still, this does not carry any weightage for the purpose of promotion. Only the performance appraisal and the leave marks are the relevant criterion for this purpose. This is also made clear by the 2nd respondent in the additional counter filed by it. However, in respect of promotions in the year 1994 weightage of 3 marks have been given to written 50 and 60 will get one mark while the officers who have been secured marks between 60 and above shall get 2 marks.
27. In respect of interview channel, 10 marks have been set apart for interview by means of grading system. The interview committee consists of two officers, who will assess the capability of the officers and allot grades. Apart from the interview 27 marks are allotted for performance appraisal and3 marks are allotted for leave record. Thus, total maximum marks have been fixed at 40 while the total maximum marks for the test channel has been fixed at 30.
28. The similar qualifications were prescribed for the promotion to the higher post. However from M.M.G.S-II to M.M.G.S-III, there is no test channel. Only the interview channel consisting of interview, performance appraisal and leave record is considered.
29. The learned Counsel for the petitioner submits that the guidelines issued by the Central Government did not permit the Bank to create various channels. Even otherwise, creating two channels of promotion to one homogeneous group of officers is wholly unwarranted and arbitrary. Moreover by stipulating a condition that the officers should either opt for test channel or interview channel only, the promotion became purely a speculative event. He further submits that no reasons were assigned for creating two channels and that there is no nexus to the object sought to be achieved. He relies on the judgment of the Supreme Court in J &K Public Service Commission etc. v. Dr. Narinder Mohan and Ors., (D.N.). The Supreme Court in the said decision held that:
"It is settled Law that once statutory rules have been made, the appointment shall be only in accordance with the Rules. The Executive power could be exercised only to fill-in the gaps, but the instructions cannot and should not supplant the Law, but only supplement the Law."
Supreme Court held that "the Executive power cannot be exercised to supplant the statutory rule, but it could only be used to supplement the Law"
A reliance was also placed by the learned Counsel on the decision of the Supreme Court in The District Collector, Chittoor and Ors. v. The Chittoor District Groundnut Traders Association, Chittoor and Ors., . While dealing with the exercise of power by the State Government under the Essential Commodities Act and the orders issued by the State Government, the Supreme Court observed that:
"the directions issued by the Central Government placing restrictions on the movement of the oil seeds outside the State and imposing compulsory levy and directing the Millers to sell the product at a fixed price without concurrence of the Central Government was ultra-vires of its powers".
The Supreme Court held that:
"a delegate is not entitled to exercise powers in excess of or in contravention of delegated powers"
In Vidya Dhar Pande v. Vidyut Grih Siksha Samithi and Ors. (2nd cited supra), the Supreme Court held that "the regulations framed pursuant to a statute can be said to have a statutory force, the breach of which will entitle the aggrieved employee to seek declaration that the impugned order was invalid and illegal"
It was held that:
"the action of the institution in terminating the services of the employee is in violation of regulations 71 and 79 of the Regulations."
The learned Counsel for the petitioner also submits that the regulations framed by the Bank have statutory force and the guidelines issued by the bank cannot over-ride the regulations. Thus, he says that administrative circulars issued by the Bank cannot over ride the statutory provisions as held by Calcutta High Court in Anuragh Narayana Sinha v. United Commercial Bank, 1988 (2) LLJ 295. He also relied on the Division Bench judgment of the Bombay High Court in Bank of India v. T.S. Kelawala,. 1988 (2) LLJ 264, where it was observed thus :
"In justice, equity and good conscience, a bank could not attempt to stifle a legitimate weapon given by the law to workers to be ventilate their grievances by drawing public attention to them. Strikes and demonstrations are not banned in this country and they are recognised as a legitimate form of protest for workers to ventilate their grievances notwithstanding the inconveniences that such strikes may cause. By saying that if you go on strike for 4 hours demanding wage revision you will loose the day's wages, the bank is deterring the employees from resorting to a legally recognised mode of protest. By an administrative circular the legitimate mode of protest allowed and recognised by law cannot be stifled. Neither Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 nor the Supreme Court gives a carte-blanche to banks to unilaterally change by administration circulars service conditions depriving the workers of their fixed monthly wages under the contract of service by attempting to stifle a legally recognised mode of protest"
30. On the other hand, the learned counsel for the 2nd respondent submits that the promotion policy framed by the Bank is valid and it gives wide choice to the Officer, so that he can choose any channel in which he is capable of getting berth for promotion. He submits that the promotion policy framed by the Bank is not justiciable. Even otherwise, there is no illegality or infirmity in the policy.
31. The learned Counsel for Respondent No. 2 relies on the following judgments:
(1) Swaran Lata v. Union of India and Ors., 1979 (1) SLR 710.
(2) The Direct Recruit Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors., (3) Federation of Directly Appointed Officers of Indian Railway and Ors. v. Union of India and Ors., .
(4) Nagraj Shiva Rao Karajagi v. Syndicate Bank Head Office, Manipai and Anr.,
32. Swarna Lata v. Union of India , 1988 (2) LLJ 295 relates to the appointment to the post of Principal, Government Central Crafts Women Institute, Chandigarh. No statutory rules were framed by the Government prescribing the qualifications. The Supreme Court held that:
"there was no statute of regulations having force of Law by which any qualifications were prescribed for the post of Principal. There were also no rules framed to regulate the recruitment and conditions of service of the post under proviso to Article 309"
Under such circumstances, the Supreme Court held that:
"it is the exclusive power of Chandigarh administration, in the absence of any Rules or law to prescribe essential qualifications for direct recruitment to the post and accordingly, the qualifications were prescribed in consultation with the Public Service Commission"
However, in the instant case, it is not in dispute that the statutory service regulations have been framed by the Bank. Therefore, this decision is not of any assistance to the Respondents.
33. In The Direct Recruit Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors (11th cited supra), the Supreme Court while dealing with the recruitment to the post from different sources, held that "where the appointments are made from more than one source, it is permissible to fix the ration for recruitment from the different sources and if Rules are framed in that regard, they must ordinarily be followed strictly"
Thus, the Supreme Court held that:
"introducing quota system of a particular cadre from more than one source, cannot he said to suffer from inherent invalidity. However, the unreasonable implementation of such Rule may attract the frown of equality clause"
(See: A.K. Subraman v. Union of India, .
But, however, in the instant case in respect of same category of Officers, two channels have been provided and it has to be considered whether creating two channels to one category of Officers Would be valid.
34. In Nagraj Shiva Rao Karjagi v. Syndicate Bank Head Office, Manipal and Anr. (13th cited supra), the Supreme Court held that "Section 8 empowers the Government to issue directions in regard to matters of policy, but there cannot be any uniform policy with regard to different disciplinary matters and muchless, there could be any policy in awarding punishment to delinquent officers in different cases. The authorities cannot act on the dictation of the Central Government, vigilence Commission, but they should exercise their judicial discretion, keeping in view the facts and circumstances of each case"
This decision is not applicable to the facts of the present case.
35. In Federation of Directly Appointed Officers of Indian Railway's case (12th cited supra), the Supreme Court reiterating the principles laid down in Direct Recruits case and repelling the argument of the learned Counsel for the Appellant "that the State is prohibited to create separate channels of service and create discrimination by making one as an isolated one and not providing for promotional avenues reasonably.
36. Mr. Satyanarayana Prasad, while contending that by virtue of creating two channels, the bank has classified the Officers from one group to two without any rationale and thereby he submits that this is a case of unreasonable classification. He relies on the judgment of the Supreme Court in All India Station Masters' and Asst. Station Masters' Assn. Delhi and Ors. v. General Manager, Central Railway and Ors., . In that case, the Station Masters raised grievance that the Guards were given double promotional opportunities and that benefit extended to the Guards blocked the promotion chances of road-side Station Masters. The Supreme Court held that "there is no illegality or irregularity in creating double promotional opportunities to the Guards as the Station Masters and Guards from different class by themselves"
While rejecting the plea of the Station Masters, the Supreme Court held:
'The concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equality is predicted. Equality of opportunity in matters of employment can be predicted only as between persons, who are either seeking the same employment or have obtained the same employment. It is therefore, clear that, assuming without deciding that matters of promotion are matters relating to employment within the meaning of Article l6(1), such equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes"
Thus, this case does not help the petitioner in any manner.
37. He, nextly relied on the decision of the Supreme Court in State of Orissa v. Dhirendranath Das, AIR 1961 SC1715. The issue, in that case, the Govt. was whether entitled to invoke the disciplinary proceedings (Administrative Tribunal Rules, 1951 or Bihar and Orissa Subordinate Service Rules). As on the relevant date, two sets of Rules were in operation for initiating disciplinary action against a Government servant. The court in that regard held thus:
"Admittedly, under the Tribunal Rules, the public servant against whom a penalty is imposed has no right of appeal against the finding and recommendation of the Tribunal which a person similarly situated may have if an enquiry were held under the Service Rules. The Tribunal Rules docontemplate an enquiry by a person not connected with the department of the public servant and the rules also provide that before passing an order to the prejudice of the public servant concerned, the Public Service Commission shall be consulted, but those compensatory safeguards do not, in our judgment, make the procedure prescribed by the Tribunal Rules any the less discriminatory. If it was open to the Government of Orissa to direct an enquiry against a non-gazetted public servant either under the Tribunal Rules or under the Service Rules, there being a substantial difference in the protection to which the public servant concerned was entitled, a clear case of discrimination arose. Article 14 of the Constitution enjoins the State not to deprive any person of equality before the law. If against two public servants similarly circumstances, enquiries may be directed according to procedures substantially different at the discretion of the Executive authority, exercise where of is not governed by any principles having any rational relation to the purpose to be achieved by the enquiry, the order selecting a prejudicial procedure, out of the two open for selection, is hit by Article 14 of the Constitution.
This case cannot be treated as a proposition for deciding the issue under attack. In this case, wile two options are open for the competent authority to initiate disciplinary proceedings, choosing the Rules which are more stringent was held to be arbitrary. But, in the instant case, the question is whether creation of, two channels to one category of officers is valid or not. Thus, this decision has no bearing on the issue.
38. The learned Counsel for the Respondent submits that the promotion policy cannot be said to be arbitrary and it is in the interest of the Officers itself, he relies on the Judgment of the Supreme Court in Reserve Batik of India v. Sahasranamam, . The Supreme Court while dealing with the scheme for promotion to Class-Ill Employees of Reserve Bank, as contained in Circular dated 13-9-1972, held that:
"that consideration of Centrewise seniority of employees for the purpose of promotion was not violative of Articles 14 and 16"
The Supreme Court observed that:
"in service jurisprudent, there cannot be any service Rules, which would satisfy each and every employee and its constitutionality has to be judged by considering whether it is fair, reasonable and thus justice to majority of employees and fortunes of some individual is not the touch stone"
To the same effect, the Supreme Court observed in Kamal Kanthi Dutta v. Union of India, .
39. The next decision relied on by the learned counsel for the 2nd respondent is S.P. Biswas and Ors. v. State Bank of India, . In the said case, the Supreme Court while commenting on promotion under the merit channel to the post of Middle Management Grade-II and after scrutinising Bank's promotion policy, held that:
"Our conclusion is that no infirmity rendering this policy arbitrary and, therefore, assailable on that ground is disclosed. Keeping in view the laudable object of attracting academically brilliant candidates into the Bank's service as officers by direct recruitment by giving incentive of accelerated promotion to the most meritorious amongst them who maintain a high standard of achievement is conducive to public interest and cannot be faulted. Of the several heads under which the marks are divided for promotion of Merit Chahnel, written test and interview are the only ones which depend on the current performance. The marks under the remaining there heads of seniority, performance appraisal and CAIIB (passing of examination held by Bank's Institute) relate to post performance of the candidate which are matters of record, It is, therefore, the appraisal of the current performance by written test and interview which alone is the real part for a proper appraisal of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel. In this situation, if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depend ing upon the number of vacancies available in Merit Channel, the creterion adopted cannot be termed arbitrary. As earlier indicate, the marks obtained for seniority, performance appraisal and CAIIB are based on service record and not on appraisal of the candidate by a mode independent of service record for assessing the true current worth of the candidate. Since, equal opportunity is available to all for competing through the Merit Channel, in addition to the prospects through the Seniority Channel, the policy adopted cannot be treated as irrational, discriminatory or arbitrary. No doubt, there is always room for improvement and so also in the mode of implementation of this policy"
In the Merit Channel, the following was the break-up of the marks:
Written Test: 40% Seniority Test: 10% Performance Appraisal: 20% Interview: 20% CAIIB examination: 10%
40. In the instant case, two channels were created viz. Written Test channel and Interview channel. Therefore, it cannot be said that these channels are seniority channel and merit channel. Even in the Supreme Court case, it was observed that the Officer is having additional merit channel in addition to the seniority channel. In the case on hand, the Officers are not permitted to take two channels simultaneously. This is virtually curtailing the promotion avenue of the officer to 50% only.
41. The learned Counsel for the 2nd respondent relied on the decision of the Supreme Court reported in Indian Airlines Corporation v. Capt. K.C. Shukla and Ors., . In that case, the Supreme Court was dealing with the allocation of marks for written test and interview and evaluation of confidential entries. The Supreme Court observed that:
"adjusting equities in exercise of extraordinary jurisdiction is one thing but assuming the role of selection committee is another. The Court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. Not that it is powerless to do so and in a case where after removing the illegal part it is found that the officer was not promoted or selected contrary to Law it can issue necessary direction."
But, however, in the instant case, this Court is not called upon to scrutinise the promotions of the Officers. Only the validity of creation of two channels is the main thrust of attack by the petitioner union. Thus, this decision does not help the Respondent.
42. Another decision relied on by the learned Counsel is S. Sarkar and Ors. v. R.D. Kriston, . The said case related to the restructuring of posts.
"The post of Asst. Station Master and Station Masters were made Feeder posts to Asst. Station Masters and the option was given to the Asst. Station Masters. The relief granted by the Supreme Court in its earlier order dated 30-5-1990 was clarified in this order for implementation."
But, in the instant case, the promotion from J.M.G.S-I to M.M.G.S-II is provided under the policy. Thus, there are no two posts of promotion carrying the same scale of pay. Hence, this decision is also not of any assistance to the Respondents.
43. Lastly, the learned Counsel for the 2nd respondent also relied on the decision of the Division Bench of this Court in W.P.No. 12744/89&Batch dated: 16-11-1995. In that case, the validity of Rule 73 of A.P.Co-operative Societies Rules issued in G.O.Ms.No. 132, dated 3-3-1993 as amended by G.O.Ms.No. 212, dated 7-5-1994 was assailed. The matter related to the transfer of erstwhile Primary Agricultural Development Bank to the service of the District Co operative Central Bank. Rule 23 incorporated the guidelines for equation of posts and integration of services covering gamut of cadre strength, notional and future promotions inter-seniority, etc. The Division Bench held that "
"Rule 73 was valid and accordingly dismissed the Writ Petition"
The case on hand stands on different footing. The integration of services and consequential effect on the service of the employees is not a matter under consideration. Hence, this decision is also of no avail to the 2nd respondent.
44. In Shankar Narayana Deshpande v. Maharashtra Industrial Development Corporation, 1993 (II) LLJ 686, the Supreme Court held that:
"for the purpose of promotion, a valid classification can be made among the members holding the same post on the basis of their qualification. Such a qualification is permissible and does not violate Articles 14 and 16 of the Constitution of India"
45. To the same effect, there is a decision of the Supreme Court in State of J & K v. Triloknath Kesu, 1974 (I) LLJ 121. But, however, in the instant case, the Bank opened two channels for promotion for the same category of officers and the said channels are optional which means the employee will have only 50% choice for promotion.
46. The learned counsel further submits that the policy as framed by the Bank cannot be assailed inasmuch as the policy was carved out after consulting the Union and after thoroughly discussing the matter in the meeting of the Board of Directors. He further submits that the policy matter should not be interfered with by the Courts. On the other hand, the learned Counsel for the petitioner submits that policy when ex-facie illegal and arbitrary, it is always open for this Court to set aside the said policy.
47. It need not be reiterated that the right to be considered for promotion is a condition of service, chances of promotion are not. Therefore, a reduction in chances of promotion would not tantamount to change in conditions of service (Reserve Bank of India v. C.N. Sahasratiamam (15th cited supra). Union of India v. S. V. Dutta, 1991 SCC 505, Union of India v. K. V. Janakiram, , Director, Lift Irrigation Corporation Ltd. and Ors. v. Pravat Kiran Mohanty and Ors., , Syed Khalid Rizvi v. Union of India, , Kamal Kanthi Dutta v. Union of India (18th cited supra).
48. The Supreme Court in Union of India v. Syed Mohammed Raja, 1993 (II) LLJ 764 , held thus:
"It is for the Department to decide on the policies of promotion which will be consistent with the interest of all the employees belonging to various cadres. It is not for the Administrative Tribunals or for the Courts to interfere with these and to detect the evenues of promotion which the Department should provide for its various employees. Moreover, the Court will interfere, if there is arbitrariness or resultant discrimination"
49. The promotion is necessary for improving the status of the Employee and also for the efficient management of the organisation. The provision for promotional avenues is to avoid stagnation and also gives incentives for improvement to those who are holding lower posts having similar functions. The Supreme Court commenting on the inevitability of the promotional avenues to the employees in Council of Scientific & Industrial Research and Anr. v. K.G.S. Bhatt and Anr., 1990 (I) LLJ 246, said that "It is often said and indeed, adroitly, an organisation, public or private, does not 'hire a hand" but engages or employes a whole man. The person is recruited by an organisation not just for a job, but for a whole carrer. One must, therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See: Principles of Personnel Management by Flipo Edwin B, 4th Ed., P.246). Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors" (See: Personnel Management by Dr. Udai Pareek, P.277). There cannot be any modern management much less any carrer planning, man-power development management development, etc. Which is not related to a system of promotions. (See: Management of Personnel in India Enterprises by Prof. N.N. Chatterjee, Chapter 12, P.128). The appellant appears to have overlooked this basic requirement of a management so far as respondent was concerned till NR & AS was introduced"
50. Thus, though the promotion as such is not a right of employee, but yet it is one of the essential conditions of service. The Supreme Court in Union of India v. S.V. Dutta (24th cited supra), held that:
"the Courts should rarely interfere on the policy framed by the Government in respect of promotion"
While dealing with the promotion to the post of Air Marshals which are the top ranking positions in the higher echlons of defence services of the country, observed that:
"the Court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy are of a highly technical or scientific nature. A consideration of a policy followed in the Indian Air Force regarding the promotional chances of officers in the Navigation Stream of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a change which would require consideration knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. These are matters regarding which Judges and the lawyers of Courts can hardly be expected to have much knowledge be reasons of their training and experience. In the present case, there is no question of arbitrary departure from the policy duly adopted because before the decision not to promote the respondent was taken, the policy had already been changed. There was no question of mala fides. More over, the change in policy in this case cannot be said to un warranged by the circumstances prevailing. As the matter was considered at some length by as many as 12 Air Marshals and the Chief of Air Staff of Indian Air Force, it is not possible to say that the question of change of policy was not duly considered. More non-availability of the minutes setting out the discussion, is of no relevance. In fact, it would perhaps be detrimental to interest of the country if these matters were not kept confidential. It cannot be assumed that what was discussed at this meeting was not relevant to the decision regarding the change of policy. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal or this change of policy but on further consideration accepted it. However, this could will show that before accepting the change of policy the Ministry of Defence and the experts attached it give full consideration to the requirements of the change. On the basis of this circumstances alone it cannot be held that the change of policy was arbitrary"
51. The Supreme Court in Roop Chand Adlakha and Ors. v. Delhi Development Authority and Ors., held:
"The Rules prescribing different conditions Of eligibility for Diploma Holders and Graduates for promotion from cadre of Junior Engineers to that of Asst. Engineers and from the cadre of Asst. Engineers to the cadre of Executive Engineers, in the Public Works Department of Delhi Development Authority were not violative of Articles 14 and 16 of the Constitution of India"
52. In the said case, the eligibility determination for promotion was made by a cumulative criterion of certain educational qualifications plus a particular quantum of service experience. Thus, it was held that the State is competent to formulate the promotion policy which prescribed as an essential part of conditions for the very eligibility that the candidate must have a particular qualification plus stipulated quantum of service experience. These are all essentially matters of policy. The Supreme Court further said:
"unless the provision is shown to be arbitrary capricious or to bring about grossly unfair result, judicial policy should be one of judicial restraint. The prescriptions may be some-what exempt or produce some hardship in their applications in individual cases; but they cannot be strucked down as unreasonable capricious or arbitrary"
53. In the instant case the policy enunciated by the Bank creates two channels of promotion from one cadre of officers. It is admitted that the officer is entitled to opt for only one channel thereby he is given the discretion to apply either Test Channel or Interview Channel. It is now well settled that in respect of the promotions based on sole merit, other considerations would not weigh with the authority except pure merit. Even according to the promotion policy in the instant case, the selection is based on merit with weightages for service/ education qualifications. Therefore, it is to be seen whether the policy is unfair or arbitrary offending Article 14 of the Constitution.
54. In State Bank of India v. Mohd. Munuddin, , the Supreme Court held that:
"The Court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The duties of such posts may need skills of different kinds- scientific, technical, financial, industrial, commercial, Administrative, educational etc. The methods of evaluation of the abilities of the competence of persons to be selected for such posts have also become nowadays very much refined and sophistacated and such evaluation should, therefore, in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirement of a given post, to be nominated by the employer. Of course, the process of selection adopted by them should always be honest and fair. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating cirucmstances other considerations will airse"
55. The Supreme Court in Dr. Ms. O.Z. Hussain v. Union of India and Ors., held thus:
"This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Minsitry of Health to attend to the represenations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within tour months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate"
56. In R. Prabha Devi and Ors. v. Govt of India (3rd cited supra) the Supreme Court held thus:
"the rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said , that a direct recruit who is senior to the promotees is not requied to comply with the eligibility condition and he is entitled to be considered to the higher post merely on the basis of his seniority........................................... Prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section Officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post."
57. It is also contended by the learned counsel for the Respondent that the service rules cannot be interfered with and he relies on the judgment of the Supreme Court in Union of India and Ors. v. Dr. S. Krishna Murthy and Ors., , the Court observed that "it should be borne in mind that when a particular rule conferring benefits on a particular group of government servants in recongition of their past services in the army, has been in operation for over twenty years, this Court will be very slow to interfere with the rule and deprive such group of government servants of the benefits so conferred on them. This, however, does not mean that this Court will shut its eyes even though such rules are illegal and are violative of the provisions of Articles 14 and 15 of the Constitution"
58. In the instant case, the arbitrariness in the policy is the principal ground of attack by the petitioner. Therefore, it is well within the powers of this Court to scan the policy with reference to the constitutional provisions. Simply becuase it is a policy of the bank, it is not immune from challenge.
59. In the promotion policy under clause 5 it is specificially stated that all the promotions shall be made on the basis of the merit with appropriate weightages given to the post performance potential and weightage for educational/ professional qualifications wherever prescribed. Thus, apart from the weightage, the merit of the officer is considered to be the principal relevant factor. The merit can be assessed objectively by written test and interview. The interview is only an ancillary to the written test. The procedure should not be such as to create room for manipulations or suspicion. Therefore, completely depending on the interview without the written test element coupled with the performance cannot be said to reflect the merit and ability of the officer. Even in Interview, it is now held by the Supreme Court that there shall not be more than 15% to 25% marks to the Interview. In any event, it is found that no object is sought to be achieved by introducing these two channels of promotion to Category-I Officers. Further by stiuplating that the officer was permitted to choose only one channel, his right to be considered for promotion was dismissed by 50%. I thus, find that the policy creating two avenues of promotion namely Test Channel and Interview Channel, cannot be sustained. As already noticed by earlier, the seniority channel and merit channel can be opened to the employees so that the officer possessing brilliant academic qualifications can get accelerated promotion purely on merit.
60. Thus, viewed from any angle, it is found that there is no nexus to the object sought to be achieved by introducing two channels of promotion to Category-I Officer. It is not as if identity of the officers promoted from J.M.G.S-I to M.M.G.S-II from test channel and interview channel are again identified for further promotion. Thus, I find that there is no rationale in opening two channels for promotion to one homogeneous group of officers. By opening these two channels, it cannot be said that they are seniority and merit channels for one channel is connected with written test eligibility criterial coupled with performance appraisal and the other channel is only interview with performance appraisal. Thus I find that creating promotion to M.M.G.S-II in two channels i.e. by Interview and another by Written Test eligibility is illegal and arbitrary.
MARKS FOR INTERVIEW, PERSONNEL APPRAISAL, LEAVE RECORD
61. The learned Counsel for the petitioner submits that the marks allotted for the Interview is 25% in case of interview channel and therefore it is highly excessive and contrary to law and the principles settled by the Supreme Court. However, the learned Counsel for the 2nd respondent submits that the allocation of the marks is purely at the discretion of the departmental authorities, and that the same cannot be interfered with by this Court under Article226oftheConstitution of India. The issue of allocation of marks depends on the type of recruitment and the purpose of selection. Right from Chithralekha 's case, , the Supreme Court has been rendering decisions as to the quantum of marks that should be allocated to the Interview and viva voce. The-yard-sticks stipulated by the Supreme Court when the selection process both by the written examination and interview are different when the process is only means of either written test or interview. In Anzar Ahmad v. State of Bihar and Ors., (D.N.) , the Supreme Court while dealing with the recruitment to the post of Unani Medical Officer, which was declared as a Gazetted Post, it broadly categorised the fixation of marks for Interview, in case of selection for, admission to educational institutions and in case of selection for employment in service. The different criteria for allotment of marks for Interview and Written test was evolved for admission to educational instiutitons and the same principle cannot be applied to the employment in serivces. After considering various decisions of the Supreme Court, it was held that allocation of 50% marks for academic performance and 50% marks for Interview cannot be held to suffer from the vice of arbitrariness.
62. In A.P. State Financial Corporation v. C.M. Ashok Raju, 1994 (4) SLR 442 = 1994 (3) ALT 20 (D.N.), the Supreme Court held that "the fixation of 25% marks for Interview held to be valid"
This is the case of promotion to the post of Manager from the lower category. In the said case as per the Regulations of the Corporation, the following criteria for promotion to the post of Manager has been fixed:
(a) A minimum of three years service.
(b) Weightage for (i) additional qualification: 10%
(ii) Length of service: 15%
(c) Performance appraisal: 50%
(d) Interview 25%
63. The learned Single Judge of this Court allowed the Writ Petition holding that "the marks ear-marked for performance appraisal is on the higher side and that the marks for seniority was on the lower side and therefore allowed the Writ Petition, directed the Corporation to frame new promotion policy". However, the Division Bench while upholding the finding of the learned Single Judge mat 25% marks for Interview was excessive did not agree with the Single Judge that 50% marks for the performance appraisal was excessive and reduced the interview marks from 25% to 15% and fixed the marks regarding the length of service from 15% to 25%. When the matter was brought to the Supreme Court by the Corporation assailing the judgment of the Division Bench, set aside the judgment of the learned Single Judge, as well as the Division Bench.
64. Appraisal system is a recent innovation which replaced the system of confidential reports. According to the Hand Book on Performance Appraisal brought out by the Canara Bank, in order to evaluate the qualitative and quantitative aspects of an Officer, an assessment or performance of individual officer at every length is essential. With a view to provide greater focus on the performance and results, the Bank had introduced on-going appraisal system for officers in Scale-I, II, and III. The system facilitates effective communication, strenghen superior; subordinate relationship and planning the work in time with organisational objectives. The various procedures have been set out for assesseing the performance appraisal of the officer. However, the concept of appraisal reports is the produce of new promotion policy being introduced. Though the procedure for converting the process into actual marks appears to be vague and indefinite in nature, but yet the fact that the procedure has been successfully functioning in the bank has to be taken note of. In the promotion policy itself clause-5 specifically states that all the promotions shall be made on the basis of merit with proper weightages given to the past-performance, potential and weightage for educational/professional qualifications. Thus, apart from the weightage, merit of the officer is considered to be relevant factor. The merit could only be assessed objectively by the written test and also by interview. The interview can be said to be only an ancillary to written test. Even in Biswas case where the Supreme Court scrutinised the promotion policy under purely merit category, 40 marks were allotted to written test, 20 to interview and 20 to P.R. and remaining 20 for service/qualification weightages. Though the Supreme Court did not disapprove the process of selection by means of only interview and performance, yet the procedure and allotment of marks under various heads should be such as not to create any room for manipulations or suspcions. Thus considered the marks allotted for the Interview and the performance appraisal report, cannot be said to be arbitrary or illegal.
65. Coming to the aspect of the marks allocated for Leave Record, the learned counsel for the petitioner submits that allotting the marks for leave record for the purpose of considering the case of the officer for promotion is wholly irrational and unwarranted. He submits that the marks given to the leave record have no bearing on promotion. There appears to be force in the contention. The leave cannot be claimed as of right and it is only subject to sanction by the competent authority. There are various categories of leave to which an officer is entitled namely Earned Leave, Medical Leave etc. When once the leave is sanctioned by the bank and the officer is allowed to avail the leave, it would not be open for the authorities to allot less marks to those who have taken more number of spells and more marks who availed the leave on less number of times. Thus, in my considered opinion, Bank cannot aprobate and reprobate. Allotment of marks for experience/service, academic excellency for the purpose of promotion is permissible. But, how leave record is relevant for the purpose of promotion is not clarified by the Bank. Perhaps, the intention is not clarified by the Bank. Perhaps, the intention that could be culled out is that absence of the officer disturbs the functioning of the bank. That cannot be a valid ground. The allotment of marks for leave record, would have a more deleterious effect in the sense, the employee who is not in a position to discharge his duties and who could have availed the leaves in accordance with the Rules is forced to attend the Bank and does not discharges any duties. The end result is thus the same, yet he would be entitled for more marks. More over even in the policy in Clause 5, the basis for promotion is merit plus weightages for service and academic excellency. Nowhere weightage for leave record is contemplated. Thus, I find that there is no rationale in awarding the marks for leave record and it has no nexus to the object sought to be achieved. Hence, I hold that the consideration of the leave record of the employee and awarding marks for the purpose of promotion is wholly unwarranted and arbitrary offending the Article 14 and 16 of the Constitution of India.
66. Thus, it can be seen that the policy of 1989 is different from the policy evolved by the bank during 1990. More over there was no discussion on the validity of the policy except observing that such policies are not to be interfered with same in exceptional cases. Thus, the decisions of the Madras High Court is quite different and distinguishable. Hence, I have no necessarily reject the contention of the learned Counsel for the respondent that the Writ Petition is barred by resjudicata.
To sum up, the following findings are recorded:
(i) Promoting the officers without possessing the rural service qualification is illegal and arbitrary,
(ii) Creation of two channels to M.M.G.S-II from the cadre of J.M.G.S-I by means of Interview Channel and Test Channel is arbitrary and violative of Article 14 of the Constitution of India,
(iii) The allotment of marks in respect of leave record for the purpose of promotion is illegal and unwarranted.
67. However, it is observed that the Bank has been issuing promotion policy almost every year and changing the promotion rules from time to time. The promotion is a necessary aspiration of an employee to get higher post to acquire better prospects in life. The aim of the officer is not only to enter into service, but also to prosper in service by getting promotions. Thus, the promotion policy shall be static except in minor variations, which would not affect the vested rights of the offences for being considered for promotion. Otherwise, it would result in anomalous situation whereby the promotion is made a purely speculative event.
68. As the country is advancing towards the Industrialisation, the Rules are required to be framed for the Recruitment and Promotion of the Industrial Employees. However, while framing the Rules it is all the more necessary that they should be simple in procedure and capable of being understood and implemented without much complications. In matter of promotions, the Officer is expected to foresee his future based on the promotion policy. If the policy is made an annual event, it would be very difficult for him to come up to the expectation of the promotion policy. By introducing appraisal system, I do not find fault with the Bank. But, however, the way in which it is assessed and marks are carved out of words, it is rather complicated and cumbersome process. As can be seen from the procedure for evaluation of apprisal form, it has to be graded by the review authority and thereafter it has to be converted into the marks. The scope for manipulation cannot be said to be totally eliminated. It is always desirable to have a transparent promotion policy. The promotion cannot be treated as computerised Robot. The Officer cannot be at the mercy of Computer. Computerisation of accounts in the banking sector is necessry,but at the same time, the same computerisation cannot be pressed into service in respect of promotions. Necessarily, there should be a human touch to the issue. Therefore, giving more prominence to the self-appraisal report, though it cannot be said that system is unreliable, may create room for manipulation and arbitrary results. Admittedly, in these cases, the self-appraisal is playing a predominant role. It should form only one of the ingredients in the promotion process, but it should not be the sole and principal mode for promoting the employee. Thus, it is desirable that the Bank shall evolve a transparent promotion policy keeping in view the above observations of this Court.
69. For these reasons, I allow the Writ Petition and quash the promotion policy framed by the 2nd respondent Bank for the years 1991,1992 and 1993. The result is that the 2nd respondent is required to review the situtation for the last several years and that would inevitably unsettle number of promotions and also causes administrative difficulty. Under these circumstances, I am inclined to hold that the promotions already made shall not be disturbed. The future promotions shall not be made until fresh policy is evolved. However, the Officers promoted without the rural service criteria shall take their ranks in the seniority after the officers who possessed the rural service requirement.
There shall be no order as to costs.