Punjab-Haryana High Court
R.P. Aggarwal vs Reserve Bank Of India on 30 March, 2012
Author: K. Kannan
Bench: K. Kannan
CWP No.1544 of 2001(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.1544 of 2001(O&M)
Date of Decision: 30.03.2012
R.P. Aggarwal, Assistant Manager, Reserve Bank of India, Sector 17,
Chandigarh.
... Petitioner
Versus
Reserve Bank of India, Central Office, Shaheed Bhagat Singh Road, Mumbai-
400 023, through its Governor and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Saurabh Arora, Advocate
for the petitioner.
Ms. Radhika Suri, Advocate for
Mr. L.M. Suri, Senior Advocate,
for the respondents.
*****
1. Whether reporters of local papers may be allowed to see the
judgment? YES
2. To be referred to the reporters or not? YES
3. Whether the judgment should be reported in the digest? YES
K. KANNAN, J. (Oral)
1. This order must be seen as in continuation of the facts elicited through my order dated 22.03.2012 except for a minor modification that in para 2 of the order I have wrongly observed that on one occasion leave had been sanctioned and on another occasion a post-facto sanction had been accorded. Both the counsel would agree that it was erroneous and that there were "some occasions" where leave had been sanctioned and "on some other occasions" a post-facto sanction had been accorded and the same shall be read as such.
2. The point revolves on the right of consideration for promotion of a person, who admittedly had no adverse ACRs nor was he proceeded with CWP No.1544 of 2001(O&M) [2] departmentally for any misconduct during the relevant time when the consideration for promotion was undertaken. The point hinges of whether leave that he had obtained in the years 1993 and 1994 for a period of about 47 days that registered a note in the mark sheet for departmental qualifying test for promotion that his leave record was not satisfactory could be put against the petitioner denying to him the promotion for that year.
3. The learned senior counsel Mr. Atma Ram refers me to the promotion policy that existed, which contained a specific reference to the satisfactory service record that would still have a bearing to enlisting successful candidates for promotion. The relevant clause in the promotion policy of the year 1972 is reproduced here:
"III. List of successful candidates
(a) The Board will convey to the bank the results of
the written test. They will also assess the service record of candidates who have passed the written examination (all three papers or all four papers as the case may be) and declare those of them to be fit for promotion whose service record is found by them to be 'not unsatisfactory'.
(b) If the service record of a candidate who has passed the written examination does not satisfy the above requirement, an indication thereof will be given in the list of those who have passed the written examination. The concerned employee will not qualify for promotion until the Board, after reviewing his record, declares him so qualified, but he will be exempt for appearing at the written test again. The review will be done by the Services Board after such interval or intervals as the Services Board consider proper provided that the first of such reviews should not be later than one year from date of declaration of the list. For this review, the Board may CWP No.1544 of 2001(O&M) [3] interview the candidate if they so desire."
The learned counsel would argue that this was sought to be modified by a subsequent policy, which was a subject of challenge before the Supreme Court and finally settled through the decision of the Supreme Court in Reserve Bank of India v. C.N. Sahasranaman, AIR 1986 SC 1830. The subsequent policy, which was issued on 5th June, 1986 has a preamble that reads thus:
"The scheme for promotion of Staff Officers Gr.'A', annexed to Administration Circular No.8 dated 13th May 1972, stands modified as per the judgment dated 30th April 1986 of the Supreme Court in Civil Appeal No.3234 of 1981 - Reserve Bank of India and others vs. C.N. Sahasranaman and others - affirming the modifications submitted by the Bank, which were also put to referendum among the Class III employees.
2. The modifications to the principles governing recruitment and promotion for Staff Officer Gr.'A', submitted to the Hon'ble Supreme Court and which have been affirmed by it, are as under..."
This modified scheme provides for 10% of vacancies of Staff Officers Grade-A could be filled up by direct recruitment and of the remaining 90%, 75% of the same, that is, 67½ % of the total vacancies could be filled up on the basis of written examination which is a qualifying test and 25% of 90%, namely, 22½% of the total vacancies would be filled up in the order of merit amongst the persons, who had passed the qualifying test. The clause that is relevant for the remaining 67½% would required to be reproduced:
"Successful candidates would be empanelled in the central panel in order of their comparative merits and they would be considered for posting in order of their position in the central panel as, when and where, the CWP No.1544 of 2001(O&M) [4] vacancies to the posts of Staff Officer Gr.A in any of the Offices of the Bank may arise."
The attempt of the learned senior counsel was, therefore, to show that petitioner had actually been a successful candidate in the qualifying test and as a person falling within 67½%, he ought to have been promoted on the basis of inter se seniority.
4. This is contested by the counsel appearing on behalf of the bank Ms. Suri by a reference to the fact that the modified policy would only to the extent to which, there could be any inconsistency. The original provision for the manner of enlistment of successful candidates with a provision as contained in III(a) that declared a person fit for promotion whose service record was found to be 'not unsatisfactory' must be taken as still relevant for consideration, even after the modified policy was brought. The counsel would argue that the unsatisfactory leave record had been brought to the attention of the petitioner through a notice issued on 18.01.1995 and still later on 13.09.1995, and he had himself responded on 26.09.1995 that he had improved his leave record and that he could be considered for promotion.
5. On a point of law, there is no doubt in my mind that there is nothing like right to promotion but it is only a right for consideration for promotion. The promotion is invariably a Management decision and it should be possible for the person that administers the office to have appropriate discretion to determine the suitability. Such a suitability would be decided only on an objective appraisal. The learned senior counsel for the petitioner would argue that in order that a person is found unsuitable, that shall be reflected either in the ACR or by any misconduct that was attributed to him. A mere statement that leave record was not satisfactory cannot be used to ultimate treating him CWP No.1544 of 2001(O&M) [5] as unsuitable for promotion, so long as it did not result in any misconduct. According to him, if his leave had been sanctioned during the relevant time when he was found to have taken leave or when it had been subsequently sanctioned by a post-facto decision then, there was no blot that remained against him to render him unsuitable for consideration. In any event, with the modified promotion policy the seniority position would render irrelevant issue of any consideration of merit, which would include an appraisal of the satisfactory conduct. The learned senior counsel would also contend that a mere statement that leave record was unsatisfactory had a place in the schemes of things when there was an office circular, which was issued on 28.07.1989. This was later withdrawn by a conscious decision on 22.06.1992 on the ground that unauthorized absence or over-stayal of sanctioned leave was exclusively governed by Regulation 39 of the Reserve Bank of India (Staff) Regulations, 1948 and, therefore, it was not necessary to keep the earlier circular still in place. After such a decision to withdraw the circular, there could be two situations; one, of leave record being unsatisfactory, which was not a misconduct and second, a leave record which was not satisfactory, which was a misconduct.
6. The learned counsel relies on decisions of Hon'ble the Supreme Court and this Court in State of Punjab v. Bakshish Singh, 1998 AIJEL-SC 29121, State of Punjab v. Chanan Singh, 1988(2) CLJ 21 and Punjab State v. Rur Singh, 2000(2) SCT 60 that have held that period of absence from duty, if it is regularized and converted into leave without pay, the proceedings for misconduct cannot be supported. I wold not detain myself on this, for, it is not the contention of the respondents that if the leave had been sanctioned, CWP No.1544 of 2001(O&M) [6] there was still scope for taking action for misconduct. The issue is even if it is not misconduct would the person obtain a vested right to promotion. The learned counsel appearing on behalf of the respondents would refer to a judgment of the Supreme Court in The High Court, Calcutta and another v. Amal Kumar Roy and others, AIR 1962 SC 1704 that dealt with a case of judicial officer being denied promotion on the ground of unsuitability by the administrative decision of the High Court. The ground of challenge in the suit, which culminated in proceeding before the Supreme Court was that there had been no action taken for misconduct against the said judicial officer and, therefore, denial of promotion was not justified. The unsuitability was determined on an appraisal of a particular order passed by the Judge where he was granting an injunction in his own favour in a case where he was himself plaintiff. It was an admitted situation that no departmental action was taken but while considering the suitability for promotion the Full Court had denied to him such a consideration. Rejecting the plea of the judicial officer that without a departmental action, he could not have been denied the promotion, the Supreme Court observed as follows:
"One thing is clear with reference to Article 235 read with the service rules that there is no right of promotion which the plaintiff could have claimed to enforce by action in a Court. Rule 49, on which reliance was placed by the plaintiff to make out his right to be considered for promotion as a Subordinate Judge is, in the first instance, not a right but only a safeguard to a public servant that punishment by way of withholding of promotion shall not be imposed upon him unless he has been given adequate opportunity of showing cause against the action proposed to be taken. It is also clear CWP No.1544 of 2001(O&M) [7] that R. 49 comes into play only when proceedings are taken by way of disciplinary action against a public servant. In such disciplinary proceedings, the Government servant proceeded against has a right to insist upon the procedure being strictly followed. But in this case there was no such disciplinary proceeding against the plaintiff and therefore, R. 49 is wholly out of the way. If R.49 is not available to the plaintiff, R. 55-A was equally not available to him, even assuming that the rule applied to the case of members of the State Judicial Service. It follows from what has been said that there was no question of a penalty being imposed upon the plaintiff. That being so, there could not be any breach of the procedure laid down by the rules for proceedings against a government servant, like the plaintiff."
7. If the legal precept were to be understood that there is never a right to promotion but only a right of consideration for promotion, the issue has to be decided on whether the unsuitability factor taken by the Management was wholly illusory and non-existent or whether they had any objective material to rely on to deny a consideration for promotion. In this case, the leave on various dates had either been sanctioned previously or this came to be sanctioned subsequently. In such a situation, surely there was no scope for taking action for misconduct. A leave that was sanctioned could never be a misconduct and such a misconduct was not also attributed to him. I would hold that there is a thin line between what is misconduct and what is still unsatisfactory conduct for consideration of promotion, even if it were to be taken that the modified policy supplanted the existing policy. The issue of a consideration for promotion on the basis of seniority does not rule out a situation of a unsuitability factor to the extent to which it is available. Even CWP No.1544 of 2001(O&M) [8] within 67½% of the qualifying test, the suitability can never be treated as completely irrelevant. The non-suitable person for promotion need not be the same as a person who is guilty of misconduct. A misconduct could have surely rendered him unfit for being taken into the zone of consideration but an unsuitability arises where a person is taken into the zone of consideration for promotion but not found suitable for promotion by the relative grading with other persons in the same panel. By the qualifying test, although he came within the zone of consideration by an appraisal of a not satisfactory conduct, which was still not a misconduct, he could have been denied the promotion. A 'not satisfactory' conduct cannot be surely a subjective assessment with no basis at all. If in this case, it was a matter of record that the petitioner had been on leave on several days, which came under adverse notice and required a reprimand that he should improve his conduct, I would hold that there was adequate material for the Management to take a decision that it was not satisfactory and, therefore, not suitable for promotion. In this case, it has so happened that when the petitioner's leave record improved and when he had himself given a representation about his improved performance, his case appears to have been taken up and given promotion the following years.
8. Under the circumstances, I would hold that the impugned order denying to him the promotion soon after his passing the qualifying test, confirmed subsequently through orders dated 01.07.1997, 07.11.2000 and 25.02.2000 under Annexures P-10, P-14 and P-16 shall be maintained and the writ petition deserves to be dismissed and accordingly, dismissed.
30th March, 2012 ( K. KANNAN ) rajan JUDGE