Calcutta High Court
Sukla Bagchi vs Uco Bank & Ors on 18 June, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
WP No.98 of 2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
SUKLA BAGCHI
Versus
UCO BANK & ORS.
BEFORE:
The Hon'ble JUSTICE PROTIK PRAKASH BANERJEE
Date : 18th June, 2019.
Appearance:
Mr. Arjun Ray Mukherjee, Adv.
Mr. Apurba Ghosh, Adv.
Ms. Sarda Sha, Adv.
..for the petitioner
Mr. Soumen Das, Adv.
Mr. Shyamal Santra, Adv.
..for UCO Bank
The Court : This is a petition seeking judicial review of the decision
making process which underlay the decision not to promote the petitioner in
MMGS-II with effect from June 1, 2017. Certain facts are not in dispute. The
writ petitioner was admittedly in service of the respondent no.1 and was serving
in scale MMGS-III. She was entitled to be considered for promotion to scale SMGS-IV for the respondent no.1 on the principle of merit. What Mr. Soumen Das rightly points out the promotion policy which is unchallenged clearly 2 indicates that for such a promotion (only merit channel), the following are the essential criteria :-
"4.3 Promotion from MMGS-III to SMGS-IV Only Merit Channel:
i) 3 years of satisfactory service in MMG Scale-III.
ii) Provided the officer should have been Branch Head for at
least two years in any scale. Incomplete year of six
months or more would be reckoned as one year.
iii) Must have secured minimum average of 70% marks in
APAR for last three years of service required for eligibility for promotion."
It is also not in dispute that the promotion policy of the respondent no.1 comprises a system of self-appraisal in terms of Annexure-P-1 being the guidelines concerned. These guidelines are in reality the standards and norms which govern the respondent no.1 even though they are called guidelines. These guidelines make it clear that the system of self-appraisal includes a self-appraisal by the concerned employee who is seeking promotion a reporting to whom it is reported and the reviewing authority. Till this stage, the method of appraisal through the employee his reporting authority and the reviewing authority is unexceptionable and the judgment in the case of A.P. State Financial Corporation vs. C.M. Ashok Raju and Others reported in (1994)5 Supreme Court Cases 359 supports this. It is fairer than the system of confidential reports where one officer superior to the employee appraises the performance of his subordinates. 3
However, it is only thereafter that the respondent no.1 has parted company with due process. It has brought a concept of an accepting authority in terms of Clause 7 of the guidelines which reads as follows:
"7. Accepting Authority The grading as awarded by the Accepting authority shall be final. However, in case, the appraisee officer is not satisfied with the final marks/grade, he/she may make representation to the Competent Authority for Grievance Redressal, as stated in point No.10 in this circular."
The procedure of appraisal, therefore, comprises the following:
"5. Acknowledgment • After self-appraisal, the appraisee officer shall submit the APAR through ONLINE to the Reporting Authority. The system will generate acknowledgment of the same, in the prescribed format, to the appraisee officer for his/her records. Similarly, Reporting Authority / Review Authority and Accepting Authority will Report / Review and Accept the APAR ONLINE and submit the same ONLINE for onward transmission. Acknowledgment may be obtained from the system at every stage. The Appraisee Officer/ Executive may take a print out of his accepted APAR from the system after completion of the process.
• While submitting APAR ONLINE, the Appraisee Officer/ Executing will select the name and EMP No. of the Reporting Authority as applicable. Thereafter, for transmission of the concerned APAR to the respective authorities, Reporting Officer will select the name and EMP No. of the Review Authority who in turn would select the name and EMP No. of the Accepting authority for completion of the process.4
• In case an APAR is forwarded / submitted to an authority, who is not the Appraisee's Reproting/Review/Accepting authority, the same may be rejected by the receiving authority with an intimation to the Appraisee/Reporting/ Review Authority concerned. The subject APAR will then revert back to the submitter/evaluar, who will resubmit the same to the appropriate Reporting/Review/Accepting Authority. However, it has to be ensured that the completion of APAR submission process is not delayed and be completed within the prescribed time schedule as mentioned in the above table."
It is the grievance of the writ petitioner that even though after the process of self-appraisal report and review, she had been marked at 75.5%, the accepting authority arbitrarily reduced her marks to 69.5 marks (paragraphs 19 and 13 respectively of the writ petition) with only one reason assigned for the same being "marks awarded by both reviewing and reporting authority under the Head Business dimensions are higher in comparison to the Business done by the Branch."
This shall appear from page 40 of the writ petition.
The writ petitioner submits that in effect this means that business dimension whose parameters and maximum marks whereof have been shown in page 36 as part of the appraisal form could not permit the granting of more than 69.5 marks even to a branch head in that particular branch, far less any subordinate. Regardless of what was the performance of the petitioner, therefore, considering the business dimensions, she could not have been given more than 5 69.5 marks according to the accepting authority. However, in the same branch many other employees who happened to be subordinate to the petitioner have been awarded upto 80% marks without the accepting authority raising a whisper against it. Since the business dimensions of the branch cannot change from person to person but is a constant for the year for the same branch either the marks should be held perverse of those persons have to be reduced or the reduction of the petitioner's marks on that ground is contrary to the materials on record or based on no materials on record or so unreasonable as no other persons faced with the same materials would have sustained it. In other words, it is perversity in action.
To contest this submission, Mr. Das makes three-fold submissions. He first submits that in terms of Clause 7 of the guidelines, the decision of the accepting authority is final subject to a representation to the competent authority and this is the promotion policy. The petitioner took a chance to be considered for promotion under that procedure and has not challenged the procedure itself. Therefore, in the teeth of Clause 7, the Writ Court ought not to interfere in something which the respondent authorities intended to have finality and where the policy is not under challenge. The second point he has raised is that it is not only for business dimensions that the petitioner has been considered unsuitable. The self-appraisal form itself shows that the petitioner needs to improve her self- discipline as has been reported by the reporting authority and in fact it has been disclosed in the affidavit-in-opposition that the writ petitioner had been issued a notice to show cause for her dereliction to duty and absenteeism and, therefore, 6 she was rightly found to be unsuitable for promotion; after all she only had a right to be considered for promotion and not promotion itself. Thirdly, he submits that regardless of what reason was given by the accepting authority in case of promotion in public employment, the suitability of the candidate for promotion may be impeached otherwise than on the reason assigned so long as the grounds are shown to exist contemporaneously in the records considered by the authority granting promotion. In the instant case, he submits that habitual absenteeism was not conducive to promotion and the records and files available to the respective authorities while considering the promotion of the petitioner employee justified the decision even if not mentioned in the actual order impugned.
Let us take each of these questions in turn. I will start with the second and third questions first.
Let us assume that the petitioner was habitually absent as reported by the reporting authority. Even then and, in fact, after factoring it she was given 75.5% marks. Had it not been for the interference of the accepting authorities, these marks would have stood. It is only because the accepting authority interfered with these marks were reduced to 69.5%. in terms of Clause 4 of the guidelines at page 32 of the writ petition, any upgrading or downgrading of marks by the reviewing/accepting authority should be substantiated with reasons. Therefore, the downgrading of the marks to 69.5% had to be accompanied by the reason for which the accepting authority did so. The accepting authority did not give the reason of habitual absenteeism or anything else. He merely and only 7 assigned the reason of the business dimensions of the concerned branch not supporting the high marks given by the reviewing and reporting authority. Therefore, whatever was in the records or files were not the reason for his interference. No attempt has been made in the affidavit-in-opposition to justify the said reason which was actually assigned. Therefore, I am at one with Mr. Ray Mukherjee when he submits that the other reasons now alleged to exist contemporaneously only in the affidavit-in-opposition are attempts an ex-post- facto justification of that by affidavit which was not in effect relevant at the time of consideration by the authority when deciding on promotion. In other words, even with these lacunae the petitioner had been awarded marks of 75.5% on full consideration and in full knowledge of the absenteeism, if at all. For that reasons the marks were not reduced. The said reason for which the marks were reduced could not be supported by the respondent even on affidavit. This takes care of the last part. Let us come then to the first part. The finality of a decision envisaged by executive guidelines cannot possibly restrain the words 'exercising jurisdiction' under Article 226 of the Constitution of India with all the powers that this Court has as the oldest chartered High Court with the power to issue writs in all except revenue matters as it used to be and now in all matters as it now is. Once a case has been made out of perversity and arbitrariness, the power of judicial review is only dependent upon whether there is any constitutional provision that ousts the jurisdiction of the Writ Court. There is no such restriction in the instant case. Even though the promotional policy has not been challenged, it is within the four corners of the policy that judicial review has been 8 sought. Therefore, I am afraid I cannot agree with Mr. Das that this Court has no jurisdiction or ought not to interfere in the matter. Very interestingly, there is no answer from the respondent how the same branch for the same year has business dimensions which do not support awarding of 75.5% marks to one employee while the same business dimensions are allowed to support awarding of 80% marks of another employee. If the marks of 75.5% were higher in comparison to the business dimensions of the branch whose parameters have been provided at page 36 of the writ petition in the self-appraisal form then the same flaw would have vitiated 80% marks being granted to the other; but no, only in case of the petitioner, it is a flaw, not in the case of others. This treatment of the petitioner as compared to the others referred to in the writ petition clearly has no reasonable nexus with the object of classification. There is no reasonable differentia between the petitioner and the said others for treating the business dimensions to be lower than the marks granted to the petitioner and absolutely alright as far as the marks granted to the others. This habitual discrimination, therefore, denies the petitioner equity before the laws and equal treatment of the laws which violates article 21 most acrimoniously.
I am fortified in this regard by the law settled by the Hon'ble Supreme Court in Union of India and Anr. Vs. A. K. Narula reported in (2007) 11 SCC page 10 paragraph 15 which reads as follows:
"15. The guidelines give a certain amount of play in the joints to DPC by providing that it need not be guided by the overall grading recorded in CRs, but may make its own assessment on the basis of the entries in CRs. DPC is 9 required to make an overall of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness, that the selection calls for interference. Where DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by DPC, the court will not interfere (vide SBI v. Mohd. Mynuddin, UPSC v. Hiranyalal Dev and Badrinath v. Govt. of T.N.). The Review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R.S. Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1- 4-1987 to 31-3-1988 from "good" to "very good", the overall grading of the respondent continued to remain as "good". There was no question of moving him from the block of officers with the overall rating of "good" to the block of officers with the overall rating of "very good" and promoting him with reference to DPC dated 13-6-1990. In the absence of any allegation of mal fide or bias against DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to the respondent, as was done in the case of R.S. Virk."
Therefore, the decision making process cannot be sustained and I am constrained to quash the notification dated June 1, 2017 containing the list of selected officers as also its communication dated June 8, 2017 and September 5, 2017 and the entire decision making process behind the promotion from MMGS 10 III to SMGS IV approving the promotion of 247 officers in the general list of the cadre.
No submission has been made before me that the other persons who would be affected by this order have not been added as a party. No question of maintainability of the writ petition without hearing them has been raised before me today. Now that I have decided the question of law it appears on the face of the records 54 vacancies appear to be still existing in the post. Even though this was a point raised in the affidavit-in-opposition, it was not pursued before me and I have also been informed that on the expiry of the financial year in which the promotion was granted (which I have quashed) all the vacancies were deemed not to exist and were not carried over to the next financial year. Thus, I have no option but to quash the promotional process and direct that consideration of the petitioner and other eligible candidates be made afresh rather than accommodate the petitioner in one post or consider the petitioner for promotion to one post afresh, since the learned advocate for the respondent submits that once the financial year expires even existing promotional vacancies are deemed not to exist.
Where there are several persons who will be affected by an order passed quashing the promotion process, two alternatives present themselves to the Court - (1) the first alternative is to direct the petitioner to make each of the affected persons a party or at least one person a party in the representative capacity; (2) second is to treat the respondent which is holding the process of promotion to be capable of representing all the persons whom it is promoting. 11 The first alternative is available when this point is raised at the earliest opportunity at the motion stage. Once the same is not done and no liberty is reserved by the respondent to take the point of maintainability in its pleadings, it is to be deemed that the respondent no.1 has waived such an objection. The other persons affected have not gone unheard since the respondent no.1 has represented them according to the second point alternatively.
The stand may prejudice the bank but since the bank relies upon the change of the financial year as the ground to hold that there is no vacancy, the bank must lose.
The writ petition is allowed to the above extent. There shall be no order as to costs.
Stay of operation of the order has been prayed for and is granted for a period of fortnight.
(PROTIK PRAKASH BANERJEE, J.) sg.