Rajasthan High Court - Jaipur
Surendra Kumar vs The Governor Rbi on 21 August, 2023
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6287/1998
Surendra Kumar son of Shri Hardev Lal Bhola, aged about ----
years, resident of A-3, Reserve Bank Officers Colony, Gandhi
Nagar, Jaipur.
----Petitioner
Versus
1. The Governor, Reserve Bank of India, Mumbai--400001
2. The Principal Chief General Manager, Reserve Bank of India,
Central Office Building, Shahid Bhagat Singh Road, Mumbai-
400001.
3. The Chairman, Reserve Bank of India Services Selection
Board, 6th Floor, Hongkong Bank Building, Near Hutatma Chowk,
Mumbai-400001.
4. The Chief General Manager, Reserve Bank of India, Near
Rambagh Circle, Jaipur.
5. Sanjeev Sinha
6. P.K. Pradhan
7. R.P. Singh
8. Nathu Singh
(All Officers Grade-A through Chief General Manager, Reserve
Bank of India, Near Rambagh Circle, Jaipur).
----Respondents
Connected With S.B. Civil Writ Petition No. 6255/1998 L K Sharma son Shri B.N. Sharma, aged about .... years, resident of 50, Gator Road, Bhrahmpuri, Jaipur.
----Petitioner Versus
1. The Governor, Reserve Bank of India, Mumbai--400001
2. The Principal Chief General Manager, Reserve Bank of India, Central Office Building, Shahid Bhagat Singh Road, Mumbai- 400001.
3. The Chairman, Reserve Bank of India Services Selection Board, 6th Floor, Hongkong Bank Building, Near Hutatma Chowk, Mumbai-400001.
4. The Chief General Manager, Reserve Bank of India, Near (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (2 of 14) [CW-6287/1998] Rambagh Circle, Jaipur.
5. Sanjeev Sinha
6. P.K. Pradhan
7. R.P. Singh
8. Nathu Singh (All Officers Grade-A through Chief General Manager, Reserve Bank of India, Near Rambagh Circle, Jaipur).
----Respondents For Petitioner(s) : Mr. A.K. Sharma (Sr. Adv.) with Mr. Rachit Sharma For Respondent(s) : Mr. Sanjay Shrivastava with Mr. Adeet Shrivastava HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order RESERVED ON :: 28.07.2023 PRONOUNCED ON :: 21.08.2023 REPORTABLE
1. Since common facts and question of law are involved in these petitions, so with the consent of counsel for the parties both matters are taken up for final disposal and both these matters are decided by this common order.
2. Learned counsel for the petitioners submitted that both the petitioners Surendra Kumar and L.K. Sharma bears the seniority VII/226 and VII/245 respectively but overlooking their seniority, promotion has been given to the junior persons namely Sanjeev Sinha (VIII/0069/2), VK Arya (VIII/0124), PK Pradhan (VIII/0242) and Dinesh Kumar (VIII/0417) from the post of officer Grade 'A' to Officer Grade 'B'. Counsel submits that deviating from the criteria fixed by the RBI a new criteria was adopted for the first time in the year 1998 by which the petitioners have been deprived to get promotion on the post of Officer Grade 'B'.
(D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (3 of 14) [CW-6287/1998]
3. Counsel submitted that the junior persons like the respondents No. 5 to 7 were included in the list for promotion from Grade 'A' to Grade 'B' Officer on the basis of aggregate marks obtained by them which is based on their performance reports and interview. Counsel submitted that the respondents were supposed to follow the scheme of Seniority-Cum-Suitability and include the petitioners in the select list of 1998 as the petitioners fulfilled the standard of suitability on the basis of their confidential reports as reflected in their Annual Confidential Reports (for short, 'ACRs'). Counsel submits that denying promotion to the petitioners amounts to violation of the promotion policy and the scheme of Seniority-Cum-Suitability. Counsel submitted that such action of the respondents are clearly against the judgment of Hon'ble Supreme Court in the case of B.V. Sivaiah and Ors. Vs. K. Addanki Babu and Ors. reported in (1998) 6 SCC 720. Counsel submitted that the material has been placed on record by the respondents to justify their stand to overlook the existing criteria of Seniority-Cum-Suitability and they were not justified in adopting a new criteria of merit-cum-suitability by way of an exception in the year 1998 to deprive the promotion to the petitioners overlooking their seniority and the past ACRs. Lastly, he argued that the respondents deprived the petitioners from their rightful claim and fair consideration for promotion to Grade 'B' Officer. Hence, interference of this Court is required.
4. Per contra, counsel for the respondents opposed the arguments raised by the counsel for the petitioners and submitted that seeking promotion is not a statutory right because all appointments and promotions are made on the discretion of the (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (4 of 14) [CW-6287/1998] Bank as per Regulation 29 of the Reserve Bank of India (Staff) Regulation, 1948 (for short, 'Regulation 1948'). Counsel submitted that a scheme for promotion was formulated by the RBI vide Administration Circular No. 26 dated 31.12.1980 and accordingly, promotion schemes were formulated and renewed from time to time and on the basis of the existing scheme, the respondents proceeded with the process and all persons were called for interview, who were falling within the zone of consideration for promotion to the post of Officer in Grade 'B'. Accordingly, the petitioner was called in for the interview and he secured 28 marks out of 50 marks. The total marks of Appraisal Reports were scaled down to 100 from 200. The petitioner secured 76 marks out of 100 for appraisal, hence, his total marks were 104 out of 150. Hence, the petitioner was not in merit and he was not found suitable on the basis of his merit and performance and accordingly, promotion was given to the person who secured higher marks. Counsel submitted that while laying down the promotion policy or rule, it is open for the employer to specify the area and parameter of weightage to be given in respect of merit and seniority separately so long as the policy is not colourabale exercise of powers. In support of his contentions, he has placed reliance on the following two judgments of Hon'ble Supreme Court:-
1. K. Samantaray Vs. National Insurance Company Ltd. reported in (2004) 9 SCC 286
2. Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.) Vs. Union of India reported in 1990 (Supp) SCC 350.
(D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (5 of 14) [CW-6287/1998] Counsel submits that in view of the submissions made herein above interference of this Court is not warranted and both these petitions are liable to be rejected.
5. Heard and considered the submissions made by both sides and perused the material available on the record.
6. The service conditions of the employees of Reserve Bank of India (for short, 'RBI') are governed by Regulation, 1948. As per Regulation 29 of the Regulation 1948 "All appointments and promotions shall be made at the discretion of the Bank and notwithstanding his/her seniority in a grade employee shall have a right to be appointed or promoted to any particular post or grade."
7. A Cadre Review Committee (for short, 'CRC') was constituted by the RBI in the year 1970 which gave recommendations in 1972, the counsel submitted that in view of the report of the CRC, the officers have been designated as Officer Grade 'A', Grade 'B', Grade 'C', Grade 'D' Grade 'E' and Grade 'F'. Two methods of recruitment are in vogue in the Bank for recruitment of officers to the posts of Grade 'B'. 35% of vacancies of officers in Grade 'B' in a panel year are filled in by direct recruitment from open market by competitive examination and interview. 15% of posts of officer Grade 'B' are filled in by selection by competitive merit i.e. examination-cum-interview from eligible Staff Officer of Grade 'A' and remaining 50% of officer Grade 'B' posts are filled by the Bank on the basis of select list prepared by Reserve Bank of India. Services Board forms a list of eligible Staff Officer Grade 'A' on the basis of interview and performance appraisal reports for the preceding three years.
(D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (6 of 14) [CW-6287/1998]
8. A scheme of promotion of officers was formulated by the Reserve Bank of India and was circulated vide Administration Circular No.26 dated 31st December, 1980. the relevant portion of the promotion scheme is reproduced below:
"Officers-Promotion System Prior to the introduction of Common Seniority and inter- Group Mobility in the different grades of Officers belonging to erstwhile Groups I, II and III in the Bank, promotions to higher grades were being made group-wise on the basis of seniority-cum-suitability. The Reserve Bank of India Officer Cadre Review Committee appointed in regard to recruitment, promotions, mobility of officers between different departments, etc. On the basis of their recommendations, the procedures for future recruitment, promotion, mobility between departments and inter- changeability of posts, as communicated in Administration Circular 15 and 8 dated 22 nd May 1974 and 7th January 1978 respectively, had been formulated.
2. The Bank has since review the existing system of promotion in officers cadres. After careful consideration of the matter in all its aspects and with the approval of the Committee of the Central Board, it has been decided that the existing selection system may be modified to the extent indicate below.
Staff Officers Grade A & B. The existing system of promotion to Staff Officers Grades A and B would continue. (i.e. Selection through Reserve Bank of India Services Board on the basis of scrutiny of Performance Appraisal Reports and interview in respect of promotion to Grade "B". the zone of consideration was twice the number of vacancies plus officers belonging to SC/ST category falling in the third zone and the selection was on the basis of seniority-cum-suitability and officers who had attained the minimum qualifying standard were empanelled)."
9. An expert committee of Human Resources Development in Reserve Bank of India was formed by the Bank under the Chairmanship of Shri S.S. Marathe, former director of the Central Board of the Reserve Bank of India to undertake a review of the Bank's existing policy with regard to Human Resources development (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (7 of 14) [CW-6287/1998] and the Committee submitted its report to the Bank on 31st January 1992. The Bank reviewed its promotion policy on the basis of experience gained and in the light of recommendations of Marathe Committee and with the approval of the Committee of the Central board of Director of the Bank, introduced certain modifications in the officers promotion policy vide Administration Circular No.4 dated 29 th November 1994 with effect from panel year commencing from 1 st January, 1995. The promotion policy provided, inter alia as under:
"(i) System of Promotion The selection process for identifying suitable officers for promotion to higher grades (from Grade 'B' to Grade 'F') would remain unchanged for officers in the Combined Seniority Group and those belonging to groups other than Department of Economic analysis and Policy (DEAP) and Department of Statistical Analysis and Computer Services (DESACS).
However, selection interviews will be introduced for promotion of Research officer in Grade 'B' attached to Department of Economic Analysis and Policy (DEAP) and Department of Statistical Analysis and Computer Services (DESACS) to Assistant Adviser in Grade 'C'. Also the system of determining\eligibility to cross the efficiency bar for officers in the elongated pay scale in Grade 'D'/'E' in DEAP/DESACS would be modified by introducing an interview procedure to judge their suitability for crossing the efficiency bar. The composition of the Committee to hold the interviews will be decided separately.
(ii) Zone of Consideration The zone of consideration to identify officer to be interviewed/screened will be fixed at twice the number of estimated vacancies for promotions to Grade 'B', 'C' 'D' and 'E'. This number will exclude the repeaters. In other words, the number of officers eligible for interview/screening will be those who were not selected earlier plus twice the number of expected vacancies. Further, in recognition of the nee for a very high level of selectivity for promotion to Grade 'F', the zone of consideration will be 3 times the number of anticipated vacancies, excluding repeaters. Consistent with the above change, the extended zone of consideration for scheduled caste and scheduled tribe (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (8 of 14) [CW-6287/1998] officers for promotion to posts upto Grade 'C' will be fixed at 3 times the number of vacancies.
(iii) Eligibility Officers who have completed a minimum service of 3 years in a grade as on 1 st January of the panel year would be eligible for consideration for promotion to the next higher grade. However, in the event of non-availability of adequate number of officers for interview, the minimum eligible service for interview/screening for promotion to the next higher grade would be relaxed to two years.
(iv) Size of Panel The size of the panel of selected officers will be limited to the number of vacancies estimated for the year. The inter seniority in the existing grade of the officers empanelled for promotion will remain unchanged."
10. The selection of officer Grade 'A' for promotion to Grade 'B' for the panel year 1998 was decided on the basis of marks obtained by the officers in the performance appraisal reports recorded for the preceding three years i.e. 1995, 1996 and 1997 and the marks obtained in the interview. The petitioner was considered along with other candidate by the Reserve Bank of India Services Board. The petitioner was interviewed by the interview board constituted by the Reserve Bank of India Services Board. To qualify in the interview the officer was required to score a minimum of 15 marks out of 50 marks fixed for the interview. In view of the fact that the size of the panel was restricted under the promotion scheme to the extent of number of vacancies, the element of selectivity and merit was introduced in the selection process. Seniority played a role for bringing the officer in the zone of consideration for being considered for promotion.
11. In pursuance of the existing procedure a Selection Committee was constituted by the Service Board and the petitioner along with other candidates were called for interview, who were falling within the (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (9 of 14) [CW-6287/1998] zone of consideration for promotion from Officer Grade 'A' to Grade 'B'. The petitioner appeared in interview and secured 28 marks out of 50 marks and as per the promotion policy, the average marks of performance appraisal reports for the previous three years i.e. 1995, 1996 and 1997 were added in the marks obtained in interview. The total marks of the appraisal reports were scaled down from 200 to
100. The petitioner secured 76 marks out of 100 and his total marks were 104 out of 150, while the respondent No. 5 secured 85 marks in ACR and 35 marks in interview and his total marks were 118. Similarly, the respondents No. 6 and 7 secured 114 and 116 marks on the basis of their ACR of three years and interview. Accordingly, they were granted promotion to the post of Officer Grade 'B'.
12. From the pleadings and documents available on the record, it is clear that Seniority-Cum-Merit was not the only criteria for granting promotion. The criteria was based on the scrutiny of Annual Performance Appraisal Reports and interview. The criteria was Seniority-Cum-Suitability assessed on the basis of marks of ACR and interview and since the petitioner has secured less marks i.e. 104 marks, while the respondents No. 5, 6 and 7 have secured higher marks, that is why they were promoted to the post of Officer Grade 'B'.
13. The similar controversy involved in this petition came before the Hon'ble Apex Court in the case of Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (supra) and it has been held in Para 14 as under:-
"14. We find no force in the above contention of Mr. Sachar. A perusal of the promotion policy goes to show that for the purpose of promotions in the cadre of (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (10 of 14) [CW-6287/1998] officers from JMGS to MMGS II and from MMGS II to MMGS III and then up to scale VII, is not based on seniority alone. Apart from the points for seniority other factors based on selective process were also important and as such it cannot be held that such promotions in the higher scale were based solely on seniority. A perusal of the criteria laid down in the promotion policy already extracted above clearly goes to show that apart from points for seniority, points for educational and professional qualification, points for performance, in the scale and points for potential as identified in the interview have also to be assessed while making appointment by promotion. Merely because in the case of promotion from JMGS to MMGS II points for seniority being mentioned as 60, it cannot be said that such promotion in scale II may be considered as promotion otherwise than by the method of selection. In our view unless the promotion, is based on seniority alone and other factors based on merit such as educational and professional qualifications, performance in the scale, written examination or interview have no material bearing it cannot be considered as a promotion based on seniority. A perusal of the policy shows that it is a hybrid system of promotion in which up to scale IV points are given for seniority as well as for other factors also which are based on a sort of selection process depending upon the educational qualifications, performance in the scale and interview. In the case of promotion from scale IV to scale VII there are no points given for seniority at all. Thus taking in view the entire scheme of promotion policy, we think that promotions in the officers cadre from JMGS I to Scale VII shall be considered as promotions on selection basis. However the rule of reservation for SCs/STs will apply to appointments made by promotion on selection basis, subject to a procedure somewhat different from usual procedure adopted in filling up posts reserved for SCs and STs on selection basis alone for appointments to be made by direct recruitment."
14. Hon'ble Apex Court in the case of K. Samantaray (supra) has held that in absence of statutory rules, it is open for the employer to formulate its own promotion policy specifying area and parameter of weightage to be given in respect of seniority and merit separately and it has been held in Para No. 5 and 11 as under :-
(D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (11 of 14) [CW-6287/1998] "5. In response, Mr. Mukul Rohtagi, learned Additional Solicitor General submitted that on a reading of the whole policy it is clear that seniority-cum-merit is not the only criteria for granting promotion. Para 7.2 itself makes it clear that as one goes higher in the hierarchy of posts seniority has lesser importance, and merit has overriding importance. A reference was made to Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.), through its General Secretary, K.S. Badlia and Ors. v. Union of India, 1990 (Supp) SCC 350 to contend that where seniority-cum-merit and all other relevant aspects have been duly taken note of there is no scope for making a grievance. It pointed out that in the writ petition there was no challenge to the policy or its efficacy and, only during argument probably sustenance was drawn from the Rajasthan High Court's judgment and plea regarding the legality of para 7.2 was raised. It is also highlighted that the policy is in operation of more than a decade, and even without impleading a single officer who has been promoted on the basis of para 7.2, the writ petition was misconceived.
11. While laying down the promotion policy or rule, it is always open to the employer to specify area and parameter of weightage to be given in respect of merit and seniority separately so long as policy is not colourable exercise of power, or has the effect of violating of any statutorily scope of interference and other relatable. The decision in B.V. Shivaia (supra) is clearly distinguishable on facts and in law. That was a case where statutory rules governed the field. This Court, inter alia, held that fixing terms which are at variance with the statutory rules is impermissible. In the case at hand, prior to the formulation of policy in February, 1990, there were no codified prescriptions. It was the stand of the respondent-employer that prior to the formulation of the policy, certain guidelines existed and the objectives of the policy were to rationalize and codify the existing guidelines relating to promotions within officers cadre. There is no statutory rule operating. It is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts.
(D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (12 of 14) [CW-6287/1998]
15. The judgment relied upon by the petitioners in the case of B.V. Sivaiah (supra) is not applicable looking to the peculiar facts and circumstances of the case as the respondents have proceeded with the provision of the promotion on the basis of the promotion policy prevailing on the relevant time.
16. Time and again Hon'ble Apex Court has held that no employee has a right to get promotion. Such employee only has a right to be considered for promotion. In the case of Hardev Singh Vs. Union of India reported in 2011(10) SCC 121, it is always open to an employer to change its policy in relation to giving promotion to the employees. The Court would normally not interference with such policy decisions. It has been held in Para 17, 25 to 27 as under:
"17. It cannot be disputed that no employee has a right to get promotion; so the Appellant had no right to get promotion to the rank of Lieutenant General but he had a right to be considered for promotion to the rank of Lieutenant General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the Appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant General.
25. In our opinion, it is always open to an employer to change its policy in relation to giving promotion to the employees. This Court would normally not interfere in such policy decisions. We would like to quote the decision of this Court in the case of Virender S. Hooda and Ors. v. State of Haryana and Anr. (1999) 3 SCC 696 where this Court had held in para 4 of the judgment that:
"...When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the Respondents ought to follow the same."
(D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (13 of 14) [CW-6287/1998]
26. Similarly, in Balco Employees' Union (Regd.) v. Union of India and Ors. (2002) 2 SCC 333, it has been held that a court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of the court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition.
27. For the aforestated reasons, we are of the view that no injustice had been caused to the Appellant as his case was duly considered for promotion to the rank of Lieutenant General by the SSB twice but as other officers were found better than the Appellant, he could not be promoted. In the circumstances, we do not find any substance in the appeal and, therefore, the appeal deserves to be dismissed."
17. Since Rule 29 of the Regulation 1948 is clear and specific and it says that all appointments and promotions shall be made at the discretion of the Bank and notwithstanding his seniority in a grade no employee shall have a right to be appointed and promoted to any particular post or grade.
18. A discretion has been given to the RBI to frame policy of promotion and as per Rule 29, no person can claim promotion only on the basis of seniority. Hence, the respondents framed their own policy for promotion of Staff Officers from Grade 'A' to 'B' on the basis of criteria of Seniority-Cum-Suitability and on the basis of their marks in interview and previous last three ACRs. The petitioner has failed to secure higher marks in comparison to the Respondents No.4 to 6, who have secured higher marks on the basis of promotion criteria fixed by the Bank. Hence, promotion was not given to the petitioner on the post of Grade 'B' Officer.
19. Since the petitioners have neither challenged the legality and constitutional validity of Regulation 29 of the Regulation 1948 nor (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) (14 of 14) [CW-6287/1998] challenged the existing policy of promotion, hence, they are not entitled to raise any grievance about the criteria and process of promotions.
20. Accordingly, both these petitions fail and the same are dismissed.
21. Stay application and all applications (pending, if any) also stand dismissed.
21. No order as to costs.
(ANOOP KUMAR DHAND),J Pcg/5 and 6 (D.B. SAW/776/2023 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 11/11/2023 at 07:22:22 PM) Powered by TCPDF (www.tcpdf.org)