Calcutta High Court (Appellete Side)
Asok Kumar Das vs Paschim Banga Gramin Bank And Others on 15 May, 2014
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sambuddha Chakrabarti
W. P. No. 18263(W) of 2007
Asok Kumar Das
Vs.
Paschim Banga Gramin Bank and Others
For the petitioner : Mr. Soumya Majumder, Advocate
Mr. Siddhartha Sharma, Advocate
For the respondents : Mr. C. R. Bakshi, Advocate
Heard on : 10.12.2013
Judgement on : 15.05.2014
Sambuddha Chakrabarti, J.:
The grievances of the petitioner may be summed up briefly. On January 15, 1985 he was appointed as an Officer Scale-I (JMG) in Howrah Gramin Bank which is a rural bank constituted under the Regional Rural Bank Act, 1976. By a circular dated July 9, 1987 the Manager, Personnel Administration of the bank had published a seniority list of different categories of officers and employees. In the said list the petitioner was placed at serial no.
25. By another circular dated January 2, 1986 it was declared by the Chairman of the bank that pursuant to the resolution adopted by the Board of Directors it had been decided to select candidates for promotion of Officers from Junior Management Grade - I to Middle Management Grade - II on the basis of selection criteria as laid down in the notification. One of the criteria was allocation of marks on certain basis which, the petitioner claims, had already been withdrawn as early as in 1988.
The bank after an interview promoted respondents nos. 3 to 7 as Officers Grade II Middle Management Grade by an order dated June 20, 1996. Consequently the petitioner had been superseded by respondents nos. 6 and 7 who are juniors to the petitioners according to the seniority list. Subsequently these two respondents had also been promoted to the post of Scale III Officers and the petitioner is still working as a Grade I Officer.
It appears that the principal grievance of the petitioner is that allotment of 50 marks for the seniority criteria to all having eight years' service and allocation of 50 marks for performance and interview were contrary to the guideline laid down by the National Bank for Agriculture and Rural Development (NABARD) and to law as it leaves sufficient scope for the employer to manipulate. This procedure adopted by the respondent bank was challenged by a writ petition filed by several superseded employees of the bank in this court. In the meantime, the promotion rules of 1988 came under challenge all over India and ultimately the matters went to the Supreme Court and the Supreme Court had allowed the writ petitions holding the rules of 1988 to be contrary to the principles of seniority-cum-merit.
Subsequently, the Ministry of Finance (Banking Division), Government of India, notified a fresh promotion policy, which for the present purpose may be referred to as Rules of 1998, by superseding the Rules of 1988.
The said writ petition filed by the suspended employees was disposed of by a learned single judge on April 21, 2005 wherein it was directed that promotions to the private respondents should not be disturbed except for the purpose of re-determination of seniority, if necessary in the respective grades. Promotion to the petitioners shall be given to the MMG Scale II from the date of their respective juniors were given promotion to the grade and actual financial benefit shall be given to the petitioners from the date of actual promotion. The writ petitioners filed an appeal before the division bench but the division bench refused to interfere as it was not right in disturbing the promotional process which would cause immense prejudice to the bank. Their Lordships of the division bench further held that during the pendency of the appeal Gramin Banks stood merged with Paschim Banga Gramin Bank and there had to be a common gradation list.
The authorities had thereby promoted all the petitioners of the writ petition of 1996 to MMG Scale II notionally with effect from June 7, 1996 and with actual financial benefits from May 1, 2005.
The present petitioner's grievance is that thereafter the seniority list of respective grades has not been revised and finalized. He alleges that although the writ petitioners of the earlier writ petition were similarly placed as that of the present petitioner and all of them have been superseded by the respondents nos. 6 and 7 the petitioner has not been provided the promotion for not approaching to the court at the proper time and consequently due to non providing of similar benefit of promotion the petitioner had been losing financial benefits.
He, therefore, by the present petition has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to promote him to the post of Officer MMG, Scale II with effect from the date on which the person next junior to him has been given promotion and all further consequential benefits of such promotion with retrospective effect and for other reliefs.
The respondent bank has contested the writ petition by filing an affidavit-in-opposition, affirmed by the Chairman of the respondent no. 1 who is also the respondent no. 2 to the present writ petition. The stand taken by the bank is basically that of delay on the part of the petitioner in approaching the court. According to them the writ petition is directed against a promotional process which had taken place about 11 years ago. During this period the petitioner had kept absolute silence and did not ventilate his grievance. The result of the earlier writ petition must have encouraged the present petitioner who was sitting on the fence and watching the proceedings. The respondents have asserted that the delay in approaching the court has remained unexplained and, therefore, the petitioner is not entitled to any relief and the writ petition is liable to be dismissed on that ground alone.
The respondents have also denied the allegations made by the petitioner in the writ petition, particularly his claim to have ever protested, even verbally, against his alleged supersession and the promotion of others to his detriment. Mere eligibility for promotion does not entitle any one for promotion and promotion is not a matter of right. The petitioner was considered for promotion in 1996 but he was not selected. The respondent bank had selected the respondents nos. 3 to 7 for promotion to MMG Scale II by following a just and legal procedure.
The stand of the petitioner is very clear from the writ petition. Mr. Majumdar, the learned advocate appearing for the petitioner, submitted that since the petitioners of the earlier writ petition and the present petition are similarly circumstanced and stand on the same footing the benefit that has been given to them by the judgement of this court should also be extended to the present petitioner. Bank's refusal to accord the benefit amounts to an act of discrimination. It is true that only a few of the aggrieved employees approached the court but that does not mean that others similarly circumstanced should be deprived of the benefit of promotion.
Mr. Majumdar has relied on the case of State of Karnataka and Others -Vs.- C. Lalitha, reported in (2006) 2 SCC 747, for a proposition that justice demands that a person should not be allowed to derive any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The Supreme Court further observed that service jurisprudence evolved by this court from time to time postulates that all persons similarly situated should be similarly treated. Only because one person has approached the court that would not mean that another person similarly situated should be treated differently.
Mr. Bakshi, the learned advocate for the respondents, submitted that the petitioner was sitting on the fence and watching the proceedings. He had come only after the judgement of the petitioner and claims parity in order to get an advantage which has been given to the petitioners in the earlier writ petition. In the process there has been an inordinate delay of 11 years in approaching the court without any explanation for the delay.
The respondents have relied on the case of Shiba Shankar Mohapatra and Ors. -Vs.- State of Orissa and Ors., reported in (2010) 12 SC 471, for a proposition that fence sitters cannot be allowed to raise dispute or challenge the validity of an order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty of delay and latches. He also relied on the case of State of Orissa -Vs.- Mamata Mohanti, reported in 2011 Lab IC 1458. That judgement is also on the point of the effect of delay in approaching the court. It was held that the Supreme Court had consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the court after coming to know of the relief granted by the court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgement in cases where some diligent person had approached the court within a reasonable time.
Again in the case of Bharat Sanchar Nigam Limited -Vs.- Ghanshyam Dass & Ors., reported in 2011 Lab. IC 1283, the Supreme Court had held that the ratio decided in the case of K. I. Shephera and Ors. -Vs.- Union of India & Ors., reported in AIR 1988 SC 686, that it was not necessary for every person to approach the court for relief and it was the duty of the authority to extended the benefit of a concluded decision in all similar cases without dragging every affected person to court to seek relief, would apply only in four circumstances: i) when the order is made on a petition filed in a representative capacity on behalf of all similarly situated employees; ii) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not; iii) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and iv) where the court expressly directs that the relief granted should be extended to those who have not approached the court. The Supreme Court further held that where only the affected parties approached the court and relief is given to those parties the fence sitters who did not approach the court cannot claim that such relief should have been extended to them where by upsetting or interfering with the rights which had accrued to others.
Mr. Bakshi next relied on an unreported decision of this court dated July 8, 2013 passed in the case of Chandan Mukherjee and Others -Vs.- Paschim Banga Gramin Bank and Others (WP No. 2656(W) of 2013). In that case the question that cropped up for consideration was whether on the basis of a promotional circular dated April 5, 2006 the court could grant relief to the writ petitioners. Promotion was effected 8 years ago. A learned single judge had held that if any promotion is challenged after 8 years that would upset the entire promotion. The seniority of the employees would be disturbed and that would affect the third party rights. The learned single judge while disposing of that writ petition held the earlier writ petition on which the Division Bench had passed its order was in the year 2006 without delay and any such order will encourage the fence sitters and the court should not encourage those belatedly to try to use the judgement obtained by others as their cause of action. The writ petition was dismissed.
Mr. Bakshi further referred to another judgement, dated August 23, 2012, in the case of Hirak Kumar Banerjee -Vs.- Bongio Gramin Bikas Bank and Others (WP 12130(W) of 2010). There a learned single judge even after holding that the bank authorities had acted in contravention of the statutory rules did not grant relief to the petitioner on the ground that he did not assail the circular impugned in that writ petition for about 12 years. The petitioner was sitting on the fence and watching the proceedings and the moment this court passed an order which might enure to the benefit of the petitioner as well he approached the court after a gap of 12 years. Reliance was placed to the case of Shib Sahnkar Mohaparta (Supra) and Bharat Sanchar Nigam Limited (Supra) and His Lordship concluded that there was no explanation in the writ petition for the unusual delay in filing this one. Therefore, he could not assail the selection process undertaken in the year 1998.
Mr. Bakshi also relied on the case of U. P. Jal Nigam and Another -Vs.- Jaswant Singh and Another, reported in 2007(ii) LLJ
17. The Supreme Court had held that when a person who is not vigilant of his rights and acquiesces with the situation his writ petition cannot be heard after a couple of years on the ground that the same relief was granted to a person similarly situated who was vigilant about his rights and challenged shortly thereafter.
Thus, one thing is very clear. The petitioner who is aggrieved by the promotional policy adopted by the bank in the year 1996 had waited for about 11 long years to challenge it. It is no where found that he made any protest in writing to the authorities about his promotion. He was not a vigilant litigant. He had been watching the proceeding initiated by others and decided to reap advantage thereof when the other writ petitioners obtained a favourable order. His claim that he did make verbal protest cannot be accepted unless the same is admitted by the respondents. In the present case the respondents have categorically denied the same. As such his claim relating to that cannot be accepted.
In the case of State of Karnataka and Others (Supra), relied on by the petitioner, the respondent claimed appointment to a certain post. The respondent filed an application before the Debts Recovery Tribunal and thereafter filed a writ petition before the Karnataka High Court and the High Court allowed the petition directing the State to implement the order of the Supreme Court passed in an earlier case within a certain period and in that case the Supreme Court had observed that only because one person had approached the court that would not mean that persons similarly situated should be treated differently. This case has to be read and understood in the factual background of that case. It was not a case where the respondent approached the court after an inordinate delay and was sitting on the fence and watching the proceedings. On the contrary the judgements relied on by the respondents squarely apply to the facts of the case.
I find sufficient merit in the submissions of Mr. Bakshi that the inordinate delay made by the petitioner in approaching this court has really disentitled him to the reliefs he has sought for. That apart, the case of the State of Karnataka and Others (Supra) was a judgement delivered by a Division Bench. The judgement in Bharat Sanchar Nigam Limited (Supra) was delivered by a larger bench and is a more recent one. The judgement had unequivocally held that fence sitters who did not approach the court cannot claim a reliefs which were granted to the affected parties earlier by upsetting or interfering with the rights which had accrued to others. The larger bench in Bharat Sanchar Nigam Limited (Supra) specifically laid down where it would not be necessary for every person to approach the court for a relief. None of the conditions mentioned therein has been satisfied in the present case. It cannot be said that the relief granted by a learned single judge in the case of Nirmal Kumar Maity and Others (Supra) was declaratory which was indented to apply to all employees within a particular category irrespective of whether they were parties to the litigation or not. On the contrary, even though the learned single judge had held that the promotional policy pursued by the bank was not correct the order was passed on the submission made on behalf of the bank that it had kept five vacancies and if the court directed the bank to promote the petitioners it would do so without directing reversion of the private respondents after so many years. It is only in this context that this order was passed by the learned single judge and the benefit of the order was given only to the five petitioners. The learned single judge neither directed specifically nor can it be impliedly gathered that the court had meant it to apply to employees similarly circumstanced.
In such view of it there is little difficulty in accepting the contention of the respondents that the petitioner who was a fence sitter is not entitled to any relief whatsoever.
I find no merit in the writ petition and the same is dismissed. There shall be, however, no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) S. Banerjee