Orissa High Court
Manoj Kumar Pati vs State Bank Of India And Others .... ... on 5 February, 2024
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.22681 of 2014
In the matter of an application under Article 226 and 227 of the
Constitution of India
Manoj Kumar Pati .... Petitioner
-versus-
State Bank of India and others .... Opposite Parties
Amicus Curiae : Mr. S.N. Patanaik, Advocate
For Petitioner : In person
For Opposite Parties : Mr. Ashok Mishra, Sr. Adv.
Mr. P.V. Balakrishna, Adv.
CORAM: JUSTICE V. NARASINGH
Date of final hearing : 21.11.2023
Date of judgment : 05.02.2024
V. Narasingh, J.
1. Heard the Petitioner in person, Mr. Ashok Mishra, learned Senior Advocate being assisted by Mr. P.V. Balakrishna, learned counsel for the Bank and Mr. S.N. Patanaik, learned Amicus Curiae.
2. The Petitioner a retired employee of the SBI invoked the jurisdiction of this Court under Article 226 and 227 of the Constitution of India with the following prayer:
".... to allow this writ petition and while setting aside the Rancorous Representations at Para-1 of Annexure-9, Para (ii) &
(iii) of Anneuxre-6 & the vindictive & illegal constructions represented in Annexure-11 and while disposing of the Misc.
Case No.743/2015 dated 14.01.2015, I.A. No. 6177/2019 dated Page 1 of 24 WP(C) No.22681 of 2014 4.4.2019 & I.A. No.7010/2019 dated 23.04.2019, direct the Opposite Party-Bank to,
(i) To declare the Petitioner promoted to the post of MMGS-II, during the year 2003-04 w.e.f. 9.2.2004;
(ii) to do away with the requirements of Mandatory Assignments and Tests, as having been complied with and to award the Petitioner with further promotions, notionally to the Grade of SMGS-V allowing consequent pension entitlements, to which Grade the Juniors to the Petitioner had been considered and promoted in the meantime.
And to award such exemplary pecuniary compensation, which would, not only, bring about a practicable mode of enforcement and protection of the fundamental rights and of doing complete justice against the torture this Petitioner has faced, but also, would act as a practical deterrent in preventing such abject and purposeful obstruction of justice and abuse of the process of this Hon'ble Court.
xxx xxx xxx"
3. The facts as well as the grounds averred by the Petitioner run thus:
3-A. Admittedly the Petitioner joined the State Bank of India as Clerk-cum-Cashier on 05.02.1982 and the said post was redesignated as Clerk with effect from 12.04.1985. He was promoted to the post of Head Assistant and thereafter being successful in the departmental examination, he was promoted to the grade of Junior Management Grade Scale-I (JMGS-I) on 1.8.1997. The Petitioner for personal reasons initially requested to forgo promotion but later on sought withdrawal of the representation.
3-B. Acting on the representation of the Petitioner to forgo his promotion he was reverted even after posting him in the promotional rank. It was also directed that the Petitioner shall be permanently debarred for being promoted to the higher cadre.Page 2 of 24 WP(C) No.22681 of 2014
3-C. Assailing the same, the Petitioner approached this Court by filing OJC No.12217 of 2001 under Article 226 and 227 of the Constitution of India and by order dated 01.12.2011, the said OJC was allowed and the order of the Opposite Party-Bank dated 24.08.2000 vide Annexure-1 was set aside.
3-D. For convenience of ready reference, Paragraphs-9 to 11 of the said OJC No.12217 of 2001 are extracted hereunder;
"9. We are, therefore of the view that the order directing reversion of the Petitioner to the post of Head Assistant could not have been passed in view of the representation dated 20.01.1999 filed by the Petitioner withdrawing his earlier representation dated 7.1.1998 on which the Bank had not acted upon till the Petitioner joined in the promotional post.
10. Apart from the above, it also appears that the Petitioner was not only allowed to join in the promotional post but also continued in the post for some months before he was reverted to the post of Head Assistant and had been paid salary in the promotional post as stated by the learned counsel for the Petitioner. If that be so, promotion of the Petitioner to the officer cadre having been accepted by the Bank authorities by permitting him to join in the promotional post and paying him salary for the period he worked in the promotional post, order of reversion cannot be passed without due process of law as the same amounts to punishment.
11. We therefore, for the reasons stated above, allow the writ application and set aside the order in Annexure-1 and direct the Bank to permit the Petitioner to continue in the promotional post from the date he was reverted to the post of Head Assistant. However, the Petitioner having not worked in the promotional post from the date of his reversion, he shall not be entitled to salary in the promotional post till he again joins in the cadre of Junior Management Grade Scale-I, but the interregnum period shall be counted for other service benefits. The opposite parties are directed to pass necessary orders in this regard promoting the Petitioner to the aforesaid officer grade within a period of three months from the date of communication of this order."
3-E. It is apposite to state that the order passed therein attained finality.
Page 3 of 24 WP(C) No.22681 of 20143-F. Thereafter, the Petitioner approached this Court in WP(C) No.19404 of 2014 seeking promotion and other consequential reliefs which he withdrew with permission to re-file.
4. While entertaining the OJC No.12217 of 2001 challenging the decision of the Bank management dated 24.8.2000 an interim order was passed by this Court on 04.12.2003 in Misc Case No.2342 of 2003 and in terms of such interim order, he was allowed to participate in the promotion test to MMGS-II and in compliance thereof, the Petitioner had appeared in the test and faced the interview.
4-A. However, the said result was kept in a sealed cover in terms of the interim direction of this Court making it subject to final decision of the Writ Petition. Though the Writ Petition was disposed of in favour of the Petitioner but no order was passed with respect to opening of sealed cover containing the fate of the Petitioner for his promotion to the next higher rank.
4-B. The writ petition was disposed of on 01.12.2011 permitting the Petitioner to continue in the promotional post from the date he was reverted to the post of Head Assistant, as noted.
5. However, in the mean time the Bank implemented the order by treating the Petitioner as an officer of Junior Manager Grade Scale-I (JMGS-I) with effect from 01.08.1997. Authorities complied the order of this Court and opened the sealed cover as per their order dated 01.04.2013 declaring the Petitioner to have not qualified to MMGS-II for the year 2003-2004.
5-A. Being aggrieved, inter alia, with such action the Petitioner has filed the present Writ Petition.
Page 4 of 24 WP(C) No.22681 of 20146. Counter affidavit has been filed on behalf of the Opposite Parties i.e. State Bank of India wherein the specific stand has been taken that an opportunity was given to the Petitioner while complying the order passed by this Court in Misc Case No.2342 of 2003 where the Petitioner appeared the test, faced interview but could not qualify for promotion to the next higher post in the year 2003-2004.
7. In subsequent years also he was called to appear at the promotion test in May 2014, August 2014 and January 2015 but he did not appear at any of the written test for promotion to MMGS-II which is the first stage of promotion to the next grade. It is further stated that an officer in Scale-I after successfully completing the promotion test is promoted as Scale-II Officer and after completion of the mandatory required length of service and successfully completion of operational assignments the Officer will again be considered for next higher grade, i.e. Scale-III (MMGS-III).
8. In the instant case, the Petitioner is a Scale-I Officer who refused to go through the rigors of promotion process to Scale-II Officers whereas he prays for promotion directly to Scale-III Officer grade bypassing the Grade of Scale-II which is administratively, legally and technically not feasible and also not fair and not just. It is further clarified by the Bank management that complying the direction of this Court dated 3.12.2003 that if the Petitioner is otherwise eligible he be permitted to appear at the written test scheduled to be held on 6.12.2003 and 7.12.2003 for promotion to the post of MMGS-II but result shall not be published and the same shall be subject to the result of the Writ Petition and the Petitioner shall not claim any equity for the same, he was allowed to appear in the written test and subsequent interviews. But, he was not found Page 5 of 24 WP(C) No.22681 of 2014 suitable for promotion on the basis of his performance in the written test and interview.
9. It is contended by the Opposite Party-Management that the Petitioner had miserably failed in order to make himself eligible for the promotion to the next higher ranks from MMGS-I in terms of the promotion policy of the Bank during the promotion year 2013-2014. It is also brought to the notice of the Court that Petitioner did not appear in the written test although he was issued with admit card to appear in examination during different years. Since as per promotion policy of the Bank an officer to be promoted to higher grade has to complete the mandatory years in the existing grades and qualify in the written test as well as interview and fulfill other criteria and the Petitioner having chosen not to participate in the evaluation system, it was not possible on the part of the Bank to consider his suitability for promotion or otherwise.
9-A. There is no scope for the Bank to consider the candidature of officer like the Petitioner further promotion, to other higher grades, in absence of the officer not completing the required mandatory assignments.
10. The Petitioner by filing rejoinder affidavit has sought to clarify the various stands taken by the Bank management in their counter affidavit and levelled several allegations.
11. Countering the same, additional affidavit was filed by the Opposite Party State Bank of India refuting all the allegations.
12. Learned Amicus Curiae has filed written note of submission and in essence supported the stand of the Petitioner so far his right of consideration and promissory estoppel.
Page 6 of 24 WP(C) No.22681 of 201413. Written notes of submissions were also filed on behalf of the Petitioner and the Opposite Party-Bank.
14. Dealing with the right of the Petitioner to claim promotion since his Juniors have already been promoted, whereas reiterating that no one can claim promotions a vested right, learned Amicus Curiae relied on the judgment of the Apex Court in the case of Union of India vrs. Smt. Sadhana Khanna, (2008) 1 SCC 720. He also relied on the judgment of the Apex Court in the case of Ajay Kumar Shukla Vrs. Arvind Rai, 2021 15 Scale 150 on the aspect that consideration for promotion has been evolved as a fundamental right.
15. It is apt to note here that assailing his non-promotion to the scale MMGS-II for the year 2013-14, the Petitioner had preferred an appeal through proper channel which is at Annexure-16, which was numbered as Appeal No.51 dated 10.09.2013 (registered online). He also represented to the authority in this regard which was forwarded under letter dated 23.04.2014 by the Chief Manager, Jeypore Branch, through AGM (HR), LHO, Bhubaneswar.
16. This Court specifically directed the Opposite Party-Bank to file an affidavit regarding the appeal preferred by the Petitioner. For ready reference, the stand of the Opposite-Bank in Paragraphs 4 and 5 of the said affidavit is extracted hereunder:
"4. That it is humbly submitted that the Petitioner being not successful in promotion to MMGS-II for the promotion year 2003- 04 and for not being considered for promotion for year 2013-14 had preferred two appeals vide Annexure-14 and Annexure-16 respectively in the year 2013.
5. That it is humbly submitted that on receipt of the appeals of the respective promotional years, the appeals of the Petitioner along Page 7 of 24 WP(C) No.22681 of 2014 with the other appellants who have made necessary appeals were considered. However, no appeal preferred against non-promotion to MMGS-II were allowed by the Appellate Authority in the year 2013-14. For necessary perusal by this Hon'ble Court the screen shot printout with regard to publication of result in promotion of the relevant year 2013-14 and the name of all the appellants including the name of the Petitioner who preferred the appeal against non-promotion to MMGS-II in the year 2013-14 are enclosed which proves that none of the appeals preferred against non-promotion to MMGS-II in the year 2013-14 were allowed by the Bank."
17. Admittedly the same was never communicated to the Petitioner.
18. The moot questions need to be answered in the present case are as follows :
(I) Whether the Petitioner is entitled to get promotion to the next higher rank as he has claimed for overlooking all the mandatory requirements of the banks policy for considering the candidature of an employee for his promotion to the next higher rank, (II) If so, what benefit can be extended in favour of the Petitioner when he is already retired from service on attaining the age of superannuation.
19. Before this Court answers the first issue with respect to entitlement of the Petitioner for his promotion to the next higher ranks which he has claimed and to arrive at a conclusion whether Bank Management has actually deprived him from getting such benefit or not it is to be borne in mind that claim for promotion is not a matter of right whereas consideration for promotion if a person is otherwise eligible and within the zone of consideration is his indefeasible right.
Page 8 of 24 WP(C) No.22681 of 201420. The employer cannot take away such right on any ground unless and until being empowered by any statutory prescription.
21. The claim of the Petitioner rests upon the earlier order of this Court in OJC No.12217 of 2001 wherein the Petitioner had challenged the order dated 24.8.2000 passed by the State Bank of India, Head Office, Bhubaneswar refusing to allow promotion to the Petitioner to the rank of Junior Management Grade Scale-I and directed him to continue as Head Assistant.
22. The said OJC No.12217/2001 was disposed of on 1.12.2011 allowing the writ petition in favour of the Petitioner with the following reliefs:
"We therefore, for the reasons stated above, allow the writ application and set aside the order in Annexure-1 and direct the Bank to permit the Petitioner to continue in the promotional post from the date he was reverted to the post of Head Assistant. However, the Petitioner having not worked in the promotional post from the date of his reversion he shall not be entitled to salary in the promotional post till he again joins in the cadre of Junior Management Grade Scale-I but the interregnum period shall be counted for other service benefits. The opposite parties are directed to pass necessary orders in this regard promoting the Petitioner to the aforesaid officer grade within a period of three months from the date of communication of this order."
22-A. The aforesaid order with respect to "service benefits" is unambiguous. This Court in clear terms directed that the Petitioner shall not be entitled the salary of the promotional post till he again joins in the cadre of Junior Management Grade Scale-I for not working in the promotional post from the date of reversion but the intervening period shall be counted for other service benefits. It is further directed to the Opposite Parties to promote the Petitioner to the aforesaid officer grade within a period of three months from the date of communication of the said order.
Page 9 of 24 WP(C) No.22681 of 201423. The Petitioner brought to the notice of this Court that the aforesaid order of this Court was neither challenged nor implemented for which the Petitioner filed the contempt petition bearing CONTC No.1688 of 2012. The said contempt petition was dismissed for non-prosecution on 30.01.2018.
24. In the meantime, the Petitioner approached this Court in WP(C) No.19404 of 2014 for promotion and other reliefs which he withdrew with permission to re-file the same with necessary correction bringing on record the change in circumstances. In tune with the liberty so granted the present Writ Petition has been filed.
25. It may be relevant to note that the order of this Court dated 01.12.2011 was implemented vide order dated 14.3.2012 under Annexure- 3 to the Writ Petition by which the post of the Petitioner in the rank of Junior Management Grade Scale-I was restored w.e.f. 7th April, 1999 and it was further declared that the intervening period will be counted for other service benefits.
26. The Petitioner also drew the attention of this Court that during pendency of OJC No.12217 of 2001, the Petitioner approached in an interim application for a direction to the authorities to consider his case for his promotion to the next higher rank i.e. MMGS-II. Since there was a direction on 4.12.2003 by this Court to consider the case of the Petitioner for his promotion to MMGS-II (promotion year 2003-04), under both Fast Track and Normal Channel, the authority considered his case and kept the recommendation of the DPC under sealed cover. Later on after disposal of the OJC No.12217 of 2001 on 1.12.2011 and after implementation of the benefit in JMGS-I retrospectively w.e.f. 07.04.1999, the sealed cover was opened wherein the case of the Petitioner for suitability or otherwise for Page 10 of 24 WP(C) No.22681 of 2014 promotion to MMGS-II w.e.f. 9.02.2004 was kept. However as per order dt.01.04.2013, the authority found the Petitioner to be not suitable for promotion under both channels.
27. The said letter does not indicate any reason as to why the Petitioner was not found suitable.
28. At the same time a promise had been made by the authorities in the same letter dated 01.4.2013 (Annexure-9) to consider the Petitioner for promotion to MMGS-II for the year 2004-05 (both Fast Track and Normal Channel), for the year 2005-06 (Normal Channel), 2006-07 (Normal Channel) and onwards along with ensuing promotion exercise i.e. in the promotion year 2013-14. For convenience of ready reference Annexure-9 is quoted hereunder:
"Sri Manoj Kumar Pati, P.F. index No.2792567 Assistant Manager, State Bank of India, Date.01.04.2013 Jeypore Branch R.M /RBO (JEY)/HR/02 Dear Sir, STAFF : SUPERVISING PROMOTION YEAR 2003-04 PROMOTION FROM JMGS-I TO MMGS-II SEALED COVER PROCEDURE As advised by our Local Head Office, Bhubaneswar that in terms of the order dated 04.12.2003 of the Hon'ble High Court of Orissa, Cuttack, your result for promotion to MMGS-II (Promotion Year 2003-04) under both Fast and Normal Channel was held in sealed cover. Consequent upon your promotion to JMGS-I w.e.f 01.08.1997 in terms of the order dated 01.12.2011 of Hon'ble High Court of Orissa, Cuttack and subsequent confirmation in JMGS-I on 13.02.2013 retrospectively w.e.f. 01.08.1998, the sealed cover created for suitability or otherwise for promotion to MMGS-II w.e.f 09.02.2004 (Promotion year 2003-04) under both Fast Track Page 11 of 24 WP(C) No.22681 of 2014 and Normal Channel was opened and you are found "not suitable"
for promotion under both the Channels.
02. We also advise you that your candidature for promotion to MMGS-II will be considered for the promotion years 2004-05 (both Fast Track and Normal Channel), 2005-06 (Normal Channel), 2006-07 (Normal Channel), 2007-08 (Merit Channel), 2008-09 (Seniority-cum-Merit Channel), 2009-10 (Seniority-cum-Merit Channel), 2010-11 (Seniority-cum-Merit Channel), 2012-13 (Seniority-cum-Merit Channel) along with ensuing promotion exercise i.e. in promotion year 2013-14. Yours faithfully, Regional Manger"
29. The Petitioner emphatically stated about the promise made to him for considering his case in subsequent year as well as the reason in finding him unsuitable by the Bank as per information collected under RTI Act 2005 where the authorities have admitted about discarding the candidature of the Petitioner while considering his case for promotion to the rank of MMGS-II for the year 2013-14 on the ground that the Petitioner had not completed five years of service as necessary at the material time.
30. No document has been placed on record that the Opposite Party-Bank honoured its own commitment for considering the Petitioner for promotion 2004 onwards till 2013-14.
Hence, this Court records the following findings:
31. The Opposite Parties- Bank have miserably failed in honouring their own commitment and promise to consider the candidature of the Petitioner during the year specified in the letter dated 01.04.2013.
The authorities have fairly admitted that after considering the case of the Petitioner for the promotion year 2003-04 they only considered the case of Page 12 of 24 WP(C) No.22681 of 2014 the Petitioner in the year 2013-14. Therefore, the claim of the Petitioner with respect to violation of legitimate expectation is fortified. The promise/commitment to consider the case of the Petitioner year-wise under different channels from 2004-05 till 2013-14 has been violated ex facie and non-adherence to such commitment is violation of principles of promissory estoppels.
32. Even otherwise it is apt to note that independent of any commitment made by the Opposite Parties to consider the case of the Petitioner for his promotion for different years under different channels his right for consideration cannot be at the whims or fancy of the authorities. The authorities failed to realize that the Petitioner is not at their mercy. Rather it is the right accrued in favour of an employee who is otherwise eligible and within the zone of consideration for being considered by duly constituted DPC or selection body for his promotion to the next higher rank. It is trite that right of consideration for promotion is a fundamental right.
33. In this context this Court refers to the recent judgment of the Apex Court in the case of Ajay Kumar Shukla and others vrs. Arvind Rai and others, (2022) 12 SCC 579 in which the Apex Court has quoted with approval the law relating to the legal proposition that right for consideration for promotion is a fundamental right.
"37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy J., in the case of Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others, (1991) 2 SCC 295 in paragraph 4 of the report which is reproduced below:
"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it Page 13 of 24 WP(C) No.22681 of 2014 arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ Petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ Petitioner was unjustly denied of the same is obviously unjustified."
38. A Constitution Bench in case of Ajit Singh vs. State of Punjab, (1999) 7 SCC 209, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:
"21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right 22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
"Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) Page 14 of 24 WP(C) No.22681 of 2014 xxx xxx xxx
27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."
39. This Court in Major General H.M. Singh, VSM vs. UOI and Another, (2014) 3 SCC 670, again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below:
"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant- General, when it became available on 1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders Page 15 of 24 WP(C) No.22681 of 2014 clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant- General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."
34. Admittedly, the order of this Court in OJC No.12217 of 2001 dated 01.12.2011 has been implemented by the Authorities. As such, the Petitioner has been allowed to get the benefit of JMGS-I retrospectively w.e.f. 1998. Therefore, other than denial of actual salary for the period the Petitioner had not actually discharged the duty in the promotional post, the other service benefits which includes seniority, consideration of the said intervening period for the purpose of experiences and other benefits are to be extended in favour of the Petitioner. It is categorically held by this Court in Judgment dated 01.12.2011 that the Petitioner is only deprived of the monetary benefits for the intervening period in the promotional post but his service was continuous without any break in the feeder cadre because of the illegal action of the authorities in not accepting his case to join and continue in the higher post. Therefore, consciously this Court has granted the Petitioner all other service benefits.
35. Law is well settled that with respect to service experience in a particular post in order to be eligible for consideration for the next higher post, if a junior is held to be eligible, then the senior is deemed to be eligible with respect to the eligibility so far as service experience is Page 16 of 24 WP(C) No.22681 of 2014 concerned. To justify such stand the Petitioner relies upon the following decision.
36. In Union of India (UOI) and Ors. vs. K.B. Rajoria, (2000) 3 SCC 562, the apex Court have held "if a junior with the requisite years of service is considered, the senior will also be considered notwithstanding the fact that he does not possess the requisite years of service.
36-A. In Union Of India vs Smt. Sadhana Khanna, (2008) 1 SCC 720, the Apex Court held thus:
"It may be noted that the respondent was offered appointment vide letter dated 5.7.1983 which is after 1.7.1983 from which the eligibility was to be counted. Hence, it is the Department which is to blame for sending the letter offering appointment after 1.7.1983. In fact, some of the candidates who were junior to the respondent were issued letters offering appointment prior to 1.7.1983. Hence it was the Department which is to blame for this. Moreover, in view of the Office Memorandum of the Department of Personnel and Training dated 18.3.1988 and 19.7.1989 the respondent was also to be considered, otherwise a very incongruous situation would arise namely that the junior will be considered for promotion but the senior will not."
(Emphasized)
37. It is apt to note here that the tenor of submission of the learned Amicus Curiae which also got reflected in his written note of submission particularly referring to the assertion of the Petitioner, relating to his alleged non-consideration and the reply of the Opposite Party-Bank as reflected in Annexure-11 (response to RTI Appeal) is that the Opposite Party-Bank have only stated that "in discarding the candidature of the Petitioner while considering his case for promotion to the rank of MMGS- II for the year 2013-14 by stating the ground that the Petitioner had not completed five years of service as necessary at the material time for which his case could not be considered."
Page 17 of 24 WP(C) No.22681 of 201438. At the cost of repetition it is stated that while disposing of earlier OJC No.12217 of 2001 by order dated 01.12.2011, this Court had specifically directed that the Petitioner having not worked in the promotional post from the date of his reversion, he shall not be entitled to salary in the promotional post till he again joins in the cadre of Junior Management Grade Scale-I, but the interregnum period shall be counted for other service benefits. In view of such categorical direction by this Court which in the meanwhile had attained finality as agreed to at the Bar, the stand taken by the Opposite Party-Bank that the Petitioner was not considered for promotion to MMGS-II because of lack of adequate number of years of service is ex facie illegal. Hence, the consequential non- consideration for promotion to the higher rank is fallacious, as rightly pointed out by the Petitioner in person and the learned Amicus Curiae. Since the Petitioner has been deprived from consideration for promotion to the higher scale because of illegal and arbitrary action and inaction of the Opposite Party-Bank and since the Petitioner has already retired in the meanwhile, this Court has no other alternative but to direct the Opposite Party-Bank to treat the Petitioner to have been promoted notionally to the grade of SMGS-V.
39. The stand of the Petitioner has been stated in Paragraphs 35, 39 and 41 of the Writ Petition. And, the purported reason for the Opposite Party-Bank not considering the Petitioner has been stated in Paragraph-42 and response of the Opposite Party-Bank regarding non-consideration of the Petitioner's claim has been stated in Annexure-11.
40. For convenience of reference, Para-35, 39, 41 and 42 and relevant extract of Annexure-11 are quoted hereunder:
"35. That after judgment dtd.1.12.11 the Petitioner was allowed to continue in JMGS-1, since the date of reversion from 7.4.99, but Page 18 of 24 WP(C) No.22681 of 2014 the Petitioner was not allowed to get subsequent timely promotional prospects to MMGS-II, MMGS-III, SMGS-IV & SMGS-V, in time, for the said interregnum period. The O.Ps have adopted all vindictive and bias attitude to defer the implementation of the Hon'ble Court judgment dtd.1.12.2011 with a view to debarring the Petitioner from his legitimate claim for his promotions to the higher management grades of the Bank, in time.
xxx xxx xxx
39. That it is humbly submitted that the Petitioner's sealed cover result opening date is not mentioned in the Annexure-9 but after opening the sealed cover, the Petitioner was intimated on 1.4.2013 that the Petitioner was not found suitable for the said promotion. This clearly establish and makes clear about the illegal action of the O.Ps against the Petitioner. The Petitioner has qualified in written tests and thus was called to appear the interview/viva-voce test on 31/01/2004. There is no just cause to say that, the Petitioner was not found to be suitable for promotion to MMGS-II in letter dtd.1.4.2013. It is more surprising and shocking that the examination for the year 2013-2014 for promotion to MMGS-II post was not conducted nor viva-voce made but 427 JMGS-I were promoted to MMGS-II on 6.8.2013. If, in the consideration of the O.Ps. letter dated 01.04.2013, the Petitioner was eligible for promotion to MMGS-II the year 2004-05, the Petitioner should have been promoted in MMGS-II for the year 2004-05, with similar considerations like the promotion of the 427 candidates, who were promoted without any written examination and viva- voce test as per the list dtd.6.8.2013. The said promotion list dtd.06.08.2013, is annexed herewith as Anneuxure-10.
xxx xxx xxx
41. That after letter dtd.1.4.13 and promotion dtd.6.8.13 the Petitioner had represented to know the reasons for making the Petitioner not found suitable for the said promotion, even though he had qualified the written tests and was called for the interview and viva-voce test, during the year 2003-04. Further, he had also represented to know about the reasons for not being promoted to the MMGS-II, where, 427 JMGS-I candidates were promoted to the post of MMGS-II, without any written or viva-voce tests and the Petitioner was debarred. The Petitioner was assigned no reason on such representations. But, under RTI appeal it is disclosed that the Petitioner has not completed 5 years of service eligibility, Page 19 of 24 WP(C) No.22681 of 2014 during the material period, i.e., during 20p.2014 when 427 JMGS-I candidates were promoted to MMGS-II and that for this reason his candidature for MMGS-II has not been considered. This is abject violation of Hon'ble Court order dt.1.12.11 against the fact that the SBI management, on their own letter dtd.1.4.13 had confirmed the Petitioner's service in JMGS-I w.e.f. 1.8.98. This clearly establishes the malafide and revengeful intentions of the O.Ps to debar the Petitioner from further promotional prospects.
42. That it is humbly submitted that the Bank management is taking a baseless and illegal stand that the Petitioner is not having required eligible years of service as an Officer, as on the date of such consideration, i.e., for the year 2013-14, although the Petitioner's service has been confirmed w.e.f., 1.8.98, in the said qualifying grade of JMGS-I. The said reply by the O.Ps. in RTI appeal dtd.7/1-/14, is annexed herewith as Annexure-11"
"INFORMATION SOUGHT OUR REPLY
02. Please state that the reason as to As per the promotion policy best 4 how & why I was not found suitable years out of 5 years AARF marks in for promotion to MM-II against the the current cadre i.e. in JMGS-I are fact that I was assured vide letter required for consideration of the No.RBO/JPY/HR/02 dated promotion to MMGS-II for the year 01.04.2013 that my candidature for 2013-14 as per the revised policy promotion to MM-II for the back year applicable for that particular year i.e of 2004-05 to 2013-14 would be 2013-14. Since, Shri Pati had not considered along with the MM-II completed 5 years of service as promotion exercise for the year 2013- officer at the material time, he was
14. not considered for promotion."
(Emphasized)
41. The response of the Opposite Party-Bank in its counter to the specific assertion as culled out hereinabove runs thus:
"15. That with regard to Para 34,35,36,37 and 38 of the writ application, it is submitted that the averments as stated therein are mere repetitions as they have been already answered in the preceding paragraph. But however the same, if need arises, leave be granted so that necessary submissions will be made at the time final hearing of the case.
16. That with regard to Para 39, 40 and 41 of the writ petition, the averments as stated therein, it is submitted that out of 474 eligible candidates only 427 candidates were promoted to MMGS-II in the Page 20 of 24 WP(C) No.22681 of 2014 year 2013-14 taking into consideration overall performance of the officers. Obviously in any promotion process, all candidates cannot be promoted. However, during the year 2014-15, the Petitioner was included in the promotion process, admit cards were issued for both the main and supplementary exercise which he did not appear and neither opted out from the promotion process.
17. That with regard to Para 42 of the writ application, it is submitted that the averments as stated therein are totally false and incorrect and reply to such averments is more fully stated in Annexure-11 of the writ application."
42. It is thus clear that the Opposite Parties have denied the right of consideration for promotion to the Petitioner for different years as mentioned in the order dated 01.04.2013 under Annexure-9 apart from violating their own commitment in doing so. In addition to that non consideration of the candidature of the Petitioner for his promotion to MMGS-II cadre for the year 2013-14 for not having the minimum eligibility of service experience while considering the case of juniors and extending the benefit of promotion to the Juniors ignoring the legitimate claim of the Petitioner is patently fallacious. Under no circumstances, the right of Petitioner for consideration of his candidature for promotion can be denied to him and accordingly the authorities have committed grave error in violation of their own promise as well as affecting the fundamental right of the Petitioner to be considered for promotion as per their own commitment vide letter dated 01.04.2013 (Annexure-9).
43. At this juncture, it is relevant to note that the grievance of the Petitioner in this Writ Petition is not limited to promotion to the rank of MMGS-II but also to the next higher rank in tune with his counter parts and more particularly vis-à-vis his Juniors who got promotion from time to time at regular intervals. Since the authorities have deviated and affected the right of consideration of the Petitioner to the next higher rank i.e. Page 21 of 24 WP(C) No.22681 of 2014 MMGS-II and upwards qua his Juniors, the same can be extended in his favour, if the Petitioner is found to be suitable other than his eligibility of service experience. Therefore, in view of the settled position of law, the right of consideration for promotion can be restored, irrespective of the fact whether the Petitioner had the minimum service eligibility taking into consideration the order of this Court which had attained finality to count the intervening period for the purpose of other service benefits and the principles decided by the Hon'ble Supreme Court that "a senior is deemed to be eligible in terms of service experience, if a junior is accepted to be eligible".
44. On one hand grave injustice caused to the Petitioner by depriving him of his right of consideration for promotion to the next higher rank cannot be overlooked. Yet, he is no more in service having attained the age of superannuation while continuing in Junior Management Grade Scale-I. Therefore, in absence of any further scope to allow the Petitioner to appear in different tests for his promotion, in the considered view of this Court, interest of justice would be sub-served by awarding suitable compensation, in lieu of the failure of the Opposite Party-Bank in depriving the Petitioner of his promotional prospects at par with his Juniors.
45. Considering the rival submission of the Petitioner and the Opposite Party-Bank and that of learned Amicus Curiae while being cognizant of the fact that the Petitioner has not discharged the duties in the promotional posts but at the same time being alive to the plight of the Petitioner being deprived from availing promotion, because of the arbitrary action of the Bank, in not considering him for promotion as and when due and since his Juniors in the rank of MMGS-II have been promoted and Page 22 of 24 WP(C) No.22681 of 2014 taking cue from the judgment of the Apex Court in the case of Comptroller and Auditor General of India vrs. K.S. Jagannathan, (1986) 2 SCC 679 which was quoted with approval in Harigovind Yadav vrs. Rewa Sidhi Gramin Bank, (2006) 6 SCC 145. Para-26 thereof which is extracted hereunder:
"26. The next question that arises for consideration is the relief to be granted. The appellant was first considered for promotion during 1991 and was not promoted, by wrongly adopting the principle of merit-cum-seniority. The said procedure was found to be erroneous by the Single Judge, Division Bench and by this Court. The Bank was directed to consider the case of the appellant for promotion on the basis of seniority-cum-merit. Thereafter, in the contempt proceedings initiated by the appellant, the Bank undertook to comply with the order directing consideration of the appellant's case by the procedure of seniority-cum-merit. But the Bank, again by adopting the merit-cum-seniority method, failed to promote the appellant and promoted the third respondent. The procedure adopted by the Bank had been found to be faulty on three occasions by this Court and the High Court, one of which was in the case of the appellant himself. The appellant had been denied promotion for more than 16 years by repeatedly adopting such an erroneous procedure. In the circumstances, we do not think it necessary to drive the appellant once again to face the process of selection for promotion. This Court in Comptroller and Auditor General of India v. K.S. Jagannathan observed thus:
"20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the Page 23 of 24 WP(C) No.22681 of 2014 discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
(Emphasized) ,as the Petitioner has attained the age of superannuation in the meanwhile, this Court is of the considered view that directing the Opposite Party-Bank to treat the Petitioner to have notionally retired in the Grade of SMGS-V would meet the ends of justice and shall be equitable.
46. The differential retiral benefits of the Petitioner be calculated as such and disbursed, within a period of four months from the date of receipt/production of a copy of this judgment. In default thereof such differential amount shall carry interest @ 6% per annum from the date in terms of the time frame as fixed above, till payment.
47. Before parting with the case, this Court places on record its deep sense of appreciation for the dispassionate assistance rendered by learned Amicus Curiae, Mr. S.N. Patanaik. Such assistance was invaluable since the Petitioner was appearing in person.
48. The Writ Petition is accordingly disposed of. No costs.
(V. NARASINGH) Judge Orissa High Court, Cuttack Dated the 5th of February, 2024/ Pradeep Signature Not Verified Digitally Signed Signed by: PRADEEP KUMAR SWAIN Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Feb-2024 13:33:11 Page 24 of 24 WP(C) No.22681 of 2014