Karnataka High Court
M.Kalidas S/O M.Bhikshalu vs State Bank Of India Through Its Chairman ... on 3 December, 2015
Author: A.S.Bopanna
Bench: A.S. Bopanna
-1-
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF DECEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO.203752/2015 (S-PRO)
BETWEEN:
M.KALIDAS
S/O M. BHIKSHALU,
AGE: 53 YEARS,
OCC: REGIONAL MANAGER,
STATE BANK OF INDIA,
NO.1/44, A. VIDYACHAND TOWER,
OPP. SIDDHARTHA LAW COLLEGE,
COURT ROAD, STATION AREA,
KALABURAGI - 585 102.
.... PETITIONER
(BY SRI P. VILASKUMAR, ADVOCATE FOR
SRI VEERSHETTY, ADVOCATE)
AND:
1. STATE BANK OF INDIA
THROUGH ITS CHAIRMAN,
STATE BANK OF INDIA,
CORPORATE CENTRE,
MADAM CAMA ROAD,
MUMBAI - 400 021.
2. THE DEPUTY MANAGING DIRECTOR
& CORPORATE DEVELOPMENT OFFICER,
STATE BANK OF INDIA,
CORPORATE CENTRE, MADAM CAMA ROAD,
MUMBAI - 400 021.
3. THE DEPUTY GENERAL MANAGER
OFFICE OF ADMINISTRATIVE UNIT,
-2-
NETWORK-II, T.S. COMPLEX,
KESHWAPUR, SOLAPUR ROAD,
HUBLI - 580 023.
.... RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO; ISSUE A
WRIT OF CERTIORARI FOR QUASHING THE ENDORSEMENT
ISSUED BY RESPONDENTS DATED 28.11.2014 WHICH IS AT
ANNEXURE-A. CONSQUENTLY, ISSUE A WRIT OF MANDAMUS
DIRECTING TO THE RESPONDENTS TO IMPLEMENT THE
ORDER/RECOMMENDATION MADE BY NATIONAL COMMISSION
FOR SCHEDULED CASTE, NEW DELHI DATED 13.01.2014 WHICH
IS AT ANNEXURE-B AND EXTEND THE BENEFIT OF BACK DATE
PROMOTION TO THE PETITIONER W.E.F 19.02.2004 WITH ALL
CONSEQUENTIAL PROMOTIONS AND RELATED BENEFITS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner is before this Court assailing the endorsement dated 28.11.2014 impugned at Annexure-A to the petition. The petitioner in that light is seeking mandamus to direct the respondents to implement the order/recommendation made by the National Commission for Scheduled Caste, New Delhi dated 13.01.2014 as at Annexure-B to the petition and extend the benefit of backdate promotion to the petitioner with -3- effect from 19.02.2004 with the attending consequential reliefs.
2. The petitioner was originally appointed as a Probationary Officer on 02.02.1987 in the respondent- bank. Thereafter he was promoted as MMGS-II in the year 1996, MMGS-III on 01.11.2000 and was thereafter holding independent charge as a Branch Manager. The present issue relates to the promotion of the petitioner under the Fast Track Channel for the post of SMG-IV from MMG-III. The fact that the petitioner has been promoted to that post with effect from 08.09.2005 is evident. The question for consideration is as to whether the promotion as claimed by the petitioner with effect from 19.02.2004 would be admissible in the facts and circumstances of the case.
3. Though lengthy pleadings have been filed by both the petitioner and respondents, the issue as noticed would stand condensed only to the aspect of the matter relating to the effective date of promotion as against the -4- one that has been granted to the petitioner. In that light, in addition to the averments that has been put forth in the petition, a perusal of the objection statement would indicate that the petitioner in effect was eligible for the promotion under the Fast Track Channel to SMG-IV. During the year 2003-04, the promotion test had been conducted and a Call Letter was also issued to the respondent on 01.04.2004. However, subsequently the promotion has been granted to the petitioner with effect from 08.09.2005. The petitioner had been throughout agitating this aspect of the matter and seeking benefit of the promotion as had been granted to similarly placed officers with effect from 19.02.2004. The list of Officers who had been granted the benefit with effect from the year 2004 is as at Annexure-J. In the said process where the petitioner was agitating the matter, one of the proceedings that had been initiated was also before the National Commission for Scheduled Caste and Scheduled Tribe. The said authority on notifying the respondents herein has considered the case of the petitioner. A direction has been issued therein that the benefit as -5- claimed by the petitioner should be made available. In addition to the prayer that is made in the petition seeking implementation of such recommendation, the consideration is also required as to whether the case of the petitioner seeking promotion with effect from 19.02.2004 as has been granted to the other officers would be admissible?
4. In the said process, when the petitioner was agitating the matter seeking promotion, the petitioner had been directed to appear for the test which was conducted subsequently in the year 2006-07 so as to consider the retrospective benefit. The petitioner had appeared for the said test as would be seen from the documents produced at Annexure-R series and in any case, the fact that the petitioner had appeared for the said examination in the year 2006-07 is not in dispute and in the said examination, the petitioner had fared well. The question is as to whether appearance of the petitioner in the said examination should be held against -6- the petitioner to deny the earlier benefit, if it had already created a right.
5. In addition to the factual position as has been put forth, learned counsel for the respondents has relied on the decisions in the case of Dhananjay Malik and Others -vs- State of Uttaranchal and Others [(2008) 4 SCC 171] and in the case of Amlan Jyoti Borooah -vs- State of Assam and Others [(2009) 3 SCC 227] to contend that the petitioner having participated in the subsequent examination in the year 2006 and having fared well therein cannot seek for the earlier benefit as he has acquiesced to the position that he was to be granted promotion with retrospective effect only if he had passed in the said examination.
6. On this aspect of the matter, even if the legal position that one cannot approbate and reprobate is kept in perspective, what is required to be noticed is that in the instant case, it is not as if the petitioner had not been granted promotion at all and that it was to be given for -7- the first time, if he fared well in the examination during 2006-07. The fact that he was entitled to promotion is established from the very contentions that has been put forth by the respondents and admittedly since the promotion has been granted with effect from 08.09.2005, the examination to which the petitioner has once again appeared on the direction of the respondents is subsequent to the said date. Therefore, when the promotion had been granted with effect from 08.09.2005 and the petitioner was agitating that the same was to be granted with effect from 19.02.2004 as had been granted to the Officers similarly placed, even if the petitioner has appeared in the examination for the year 2006-07 and fared well therein, the same would not take away the effect that the promotion had already been granted to the petitioner on 08.09.2005 and as on that date, the contention was that the petitioner was entitled to the said promotion which was granted on 08.09.2005, but is should be with effect from 19.02.2004.
-8-
7. Therefore the decisions relied on by the respondents cannot be made applicable to a circumstance wherein the petitioner had been granted the promotion prior to the examination to which he had appeared in 2006-07 on the directions of the respondents and the promotion granted earlier to that is the consideration for the appropriate date from which the same is to be reckoned. Further, what is also to be noticed is that the decisions relied on are cases which arose for consideration relating to the selection process to which the employee concerned had acquiesced at the first instance, took part in the selection process, fared well and thereafter had raised a challenge. In distinction to the same, as noticed, in the instant case, the entitlement of the petitioner for promotion had been established even prior to the date on which he had appeared in the subsequent examination i.e., in the year 2006-07 and the promotion had already been granted, but the grievance was with regard to a date on which it had been given effect. Therefore, in the instant case, a consideration in that regard is required to be made -9- without reference to the result of the examination held in 2006-07 nor can the act of appearing for the examination take away the accrued right, if any.
8. Having noticed this aspect of the matter, reference is also required to be made to the decisions relied on by the learned counsel for the respondents in the case of State of Jharkhand -vs- Bhadey Munda and Another [(2014) 10 SCC 398, in the case of Union of India and Others -vs- Colonel G.S. Grewal [(2014) 7 SCC 303 and in the case of Manish Kumar Shahi - vs- State of Bihar and Others [(2010) 12 SCC 576]. The said decisions are relied on by the learned counsel for the respondents to contend that the employee cannot claim for promotion as a matter of right, but all that an employee can seek is to be considered for promotion and not for grant of promotion.
9. Having noticed the decisions relied on by the learned counsel for the respondents, I am of the opinion that the same cannot be made applicable to the present
- 10 -
facts. From the very narration that has been made while considering the first aspect of the matter, it has already emerged that the petitioner not only had a right to be considered for promotion as far back as in the year 2004, but the petitioner had already been held entitled to be granted promotion by granting the same, but it was with effect from 08.09.2005 instead of from 19.02.2004 as granted to the other Officers. The present petition is not in a circumstance where the petitioner is seeking promotion to any other higher post. On the other hand, the petitioner is only agitating with regard to the date from which the promotion granted to him is to be given effect with. It is in that light, the question that arises herein is not with regard to the entitlement of the petitioner for promotion, but the date from which he is entitled and in that circumstance, the promotion in any event has not been denied to the petitioner, but has been granted to him only with effect from 08.09.2005, while the other Officers have been given promotion with effect from 19.02.2004.
- 11 -
10. As already noticed, the Officers who were similarly placed and were considered along with the petitioner in the year 2004 have been granted promotion with effect from 19.02.2004 as noticed from Annexure-J. If that be the position, the only consideration being required to be made in the instant petition is the date from which the promotion should be given effect to the petitioner and in that light, when similarly placed Officers have been granted promotion with effect from 19.02.2004 and in respect of the same process, the promotion has been granted to the petitioner with effect from 08.09.2005, the said action on the part of the respondents would not be sustainable.
11. If that be the position, when in all other respects the objection statement filed by the respondent indicates that the petitioner was eligible to be considered and the promotion had been thereafter granted, such promotion in any event would have to be granted to the petitioner with effect from the date the Officers similarly placed as per the list as at Annexure-J.
- 12 -
12. Therefore keeping these aspects in view, the endorsement at Annexure-A is quashed. A direction is issued to the respondents to consider the promotion granted to the petitioner to SMG-IV with effect from 19.02.2004 and grant all other consequential benefits to the petitioner by reckoning the said date.
In terms of the above, the petition stands disposed of.
Sd/-
JUDGE hrp ct-rj