Umed Singh Dahiya vs Delhi State Coop. Bank Ltd. And Ors. on 19 March, 2013

[Cites 4, Cited by 3]

Delhi High Court

Umed Singh Dahiya vs Delhi State Coop. Bank Ltd. And Ors. on 19 March, 2013

1. This writ petition is filed by two petitioners. Petitioner No.1 is Mr. M.R.Bhardwaj and petitioner No.2 is Mrs. Kanak Rastogi. The case as put forth in the writ petition is that the petitioners have wrongly been denied promotion from the post of a clerk/supervisor to the post of accounts officer in the list of promoted officials which was issued on 17.11.1992.

2. The relevant rule of respondent No.1-Bank with respect to promotion from a clerk/supervisor to an accounts officer is Rule 1.8 of the Rules and which reads as under:-

"PROMOTION:-

Rule 1.8(a).

Subject to provision contained is rule 7.A(vii), all posts falling vacant shall be filled in through PROMOTION from the next below category. The promotion shall be made only against a vacant post or a newly created post. The promotion shall be made by Establishment Sub-Committee after considering the following:

ELIGIBILITY :-

WP(C) No.4163/1992 & WP(C) No.396/1993 Page 2 of 12

i. The promotions will be made on the basis of Seniority-

cum-merit.

ii. At least 3 years service must have been put in lower cadre.

iii. He must have received good confidential repro for atleast

3 consecutive years about his work and conduct from his incharge.

iv. A suitability report of the General Manager will be required in each case."

3. A reference to the aforesaid Rule shows that the promotion is on the basis of seniority-cum-merit. There are two further requirements in addition to the requirement of the seniority. The first requirement is that a candidate must have three continuous ACRs of the grade "good". The second requirement is of a suitability report required to be given of the General Manger. That this Rule 1.8 is the relevant rule is the admitted position before me of both the parties.

4. Learned counsel for the petitioners has drawn my attention to the seniority list issued in the year 1976, and which shows that the respondents No. 4 to 7 were definitely juniors to the petitioner No.1 inasmuch as respondents No. 4 to 7 have been appointed in January, 1975, whereas the petitioner No.1 was appointed in the year 1974. I however note that so far as the respondents No. 8 to 11 are concerned, there is no clarity as to what are the dates of appointments WP(C) No.4163/1992 & WP(C) No.396/1993 Page 3 of 12 of these respondents. There is no document on record which clearly specifies the dates of appointments of respondents No. 8 to 11. Though counsel for the petitioners has sought to place reliance upon the seniority list of 1976 to show that these respondents were placed below the petitioner No.2, however, the list is of the year 1976 and we have to see position much much later as of November, 1992 when the order was passed which effected promotions. This factual position of dates of appointments is specifically required because even the name of the petitioner No.1 is not found in the list of 1976 inasmuch as he was terminated from services, and thereafter reinstated by an order passed in the year 1980, and pursuant to which order dated 15.12.1980 the petitioner No.1 is entitled to claim his date of joining as 19.12.1974. Thus, I cannot take the list of 1976 as final with respect to inter se seniority among the petitioners and the respondents No. 8 to 11. Once it is possible that even two of the four respondents No. 8 to 11 were senior to the petitioners, petitioners would not be entitled to reliefs as claimed in this writ petition because such respondents would be appointed to the post to which petitioners, and more particularly the petitioner No.2 claims appointment by promotion. In any case, this issue of inter se seniority for claiming of the reliefs in this writ petition, will not be an aspect for deciding the writ petition, inasmuch as, this writ petition is being WP(C) No.4163/1992 & WP(C) No.396/1993 Page 4 of 12 decided on the principle of „no pay for no work‟ and of the petitioners failing to file the relevant record that they had grading "good" for three consecutive years prior to November, 1992.

5. It is also an important aspect to note that it is not disputed that the petitioners were granted promotions to the post of accounts officers on 18.9.1997. The dispute is therefore only with respect to the claim of promotion benefits for the period from November, 1992 to September, 1997.

6. The Supreme Court in the judgments reported as Union of India vs. B.M.Jha, 2007 (11) SCC 632, Union of India vs. Tarsen Lal & Ors., 2006 (10) SCC 145 and A.K.Soumini vs. State Bank of Travancore & Anr., 2003 (7) SCC 238 has held that ordinarily on account of a notional promotion no back wages can be granted because of the principle of „no work no pay‟.

7. Learned counsel for the petitioners placed reliance upon the judgment of the Supreme Court in the case of State of Kerala & Ors. vs. E.K.Bhaskaran Pillai, 2007 (6) SCC 524 to argue the proposition that once the petitioners are wrongly denied promotion, the petitioners should be entitled to the benefits of promotion inasmuch as there is no thumb rule of „no work no pay‟ and as so held in this judgment.

WP(C) No.4163/1992 & WP(C) No.396/1993 Page 5 of 12

8. In my opinion, the following factors persuaded me to apply the ratio of the judgments in the cases of B.M.Jha (supra), Tarsen Lal (supra) and A.K.Soumini (supra) for denying the relief to the petitioners of back wages and for not applying the judgment in the case of State of Kerala (supra) cited on behalf of the petitioner:-

i) There is no clarity on record as to whether petitioners in fact did have three continuous ACRs of the grade "good" for three years prior to 17.11.1992. Of course, record in this regard had to be produced by the respondents and with respect to which there are orders of this Court which are not complied with, however, the fact of the matter is that there is nothing clear-cut on record that in fact petitioners had three ACRs with the grade „good‟ for three consecutive years prior to 17.11.1992. I cannot give the benefit of adverse presumption in a case such as the present because I note that in the entire writ petition, petitioners have not referred to Rule 1.8 and as to how the petitioners satisfy the twin requirements of having three consecutive ACRs with the grade "good" and as to a suitability certificate issued by the General Manager of the respondent. Petitioners have therefore failed to plead and establish a cause of action and show as to how the WP(C) No.4163/1992 & WP(C) No.396/1993 Page 6 of 12 ingredients of the relevant Rule 1.8, which entitle the petitioners to promotion stand complied with.

ii) The petitioners did make reference to the relevant Rule 1.8 first time in its application filed subsequently being CM No.7769/1992, however, even in this application I do not find categorical averments of petitioners satisfying the twin requirements of Rule 1.8.

iii) Besides the aspect of petitioners not complying with the twin requirements of three ACRs with grade "good" and the suitability certificate by the General Manager, even the aspect of seniority with respect to date of appointments is not too clear, and in such uncertain circumstances it is not possible to arrive at clear-cut findings as to what was the position of seniority as in November, 1992 when the impugned promotions were made.

9. In view of the aforesaid discussion, the following conclusions emerge:

I) There is no document on record and nor are the requisite averments made by the petitioners that they satisfy the requirements of having three consecutive ACRs with the grading "good" for three years prior to November, 1992, and also that the Manager of the respondent gave the necessary suitability certificate.

WP(C) No.4163/1992 & WP(C) No.396/1993 Page 7 of 12 II) A list of 1976 cannot be taken as the final list with respect to seniority much later after one and a half decade as on November, 1992 because even as per the case of the petitioners, there were various changes which were made in the list of 1976, including qua the petitioner No.1 by an order dated 15.12.1980.

III) Also, petitioners themselves have filed as Annexure-C to the writ petition an order dated 18.8.1992 with respect to eight persons, including some of the respondents, again showing that such persons were retrenched and again re-appointed and thereby, it can be said that this Court cannot safely take a seniority list of 1976 as final list with respect to dates of appointments.

IV) The petitioners have admittedly not performed their duties on the higher posts, and the promotions if were to be granted would have to be only notional promotions, and therefore, the ordinary rule of „no work no pay‟ would apply as per the judgments of the Supreme Court in the cases of B.M.Jha (supra), Tarsen Lal (supra) and A.K.Soumini (supra). No such equities have been pointed out to me to enable the petitioners to take benefit of the ratio of the judgment in the case of State of Kerala (supra), not only because of uncertainty as to the final list of seniority which existed in WP(C) No.4163/1992 & WP(C) No.396/1993 Page 8 of 12 November, 1992 (and that seniority list of 1976 cannot be taken as a basis for the position prevailing in 1992 because petitioners themselves have shown that this list is changed by the orders dated 15.12.1980 and 18.8.1992.) but also because of there being no documentary proof on record of petitioners having three consecutive ACRs of "good" grade and a suitability certificate by the General Manager.

V) The petitioners have already been granted promotions and the issue really is only qua limited claim of deemed promotion for four years and ten months, and for which period admittedly petitioners have not worked in the higher posts.

10. In view of the above, I do not find any merit in the petition which is accordingly dismissed, leaving the parties to bear their own costs. WP(C) No.396/1993

1. In the present writ petition, the petitioner claims the same relief as claimed by the petitioner in WP(C) No.4163/1992. Petitioner claims that the petitioner has been wrongly denied promotion to the post of accounts officer and the promotion list dated 17.11.1992 wrongly ignores the petitioner. The petitioner claims seniority to respondents No. 3 to 18, who were said to be retrenched from the services and only reappointed in the year 1980 whereas the WP(C) No.4163/1992 & WP(C) No.396/1993 Page 9 of 12 petitioner continues to be in uninterrupted services from 1970. Petitioner also claims that he satisfies the requirements of promotion in terms of the extant Rule 1.8.

2. On behalf of the respondent No.1, it is pleaded that the respondents No. 3 to 18 were retrenched from services however on retrenchment being set aside they were appointed by giving them seniority from their earlier dates of appointment. It is argued that the writ petition is not maintainable as a promotion is not matter of right and petitioner does not comply with the requirements of promotion.

3. It is undisputed that Rule 1.8 deals with the qualifications for promotion. There are three requirements of seniority-cum-merit, three consecutive ACRs showing the grade "good" as on the date for consideration for promotion and a suitability certificate issued by the General Manager of the respondent No.1. Though the petitioner has generally pleaded compliance of Rule 1.8, however, there is no specific averment in the writ petition that petitioner has got three consecutive ACRs with the grading "good". Once this averment is missing, the petitioner cannot be said to have complied with the qualification for being promoted. There is also no documentary proof filed in this regard. Also, the petitioner claims seniority only because respondents No. 3 WP(C) No.4163/1992 & WP(C) No.396/1993 Page 10 of 12 to 18 were retrenched and thereafter appointed in 1980, however, the respondent No.1 has stated on affidavit that these respondents No. 3 to 18 were given seniority from an earlier date i.e the date from which they were originally appointed and hence these respondents are senior to the petitioner. I may note that the petitioner No.1 in WP(C) No.4163/1992 was similarly retrenched from services and by an order dated 18.8.1992 he was put back in services from the original date of his appointment. Though no similar order is found in this file with respect to respondents No. 3 to 18, however, the order dated 18.8.1992 in WP(C) No.4163/1992 qua the petitioner No.1 is an indication that retrenched employees were given re-appointment from their original date of appointment, and once the respondent No.1 has stated so on oath, I am not inclined to disbelieve the same as the only seniority list filed on behalf of the petitioner is a seniority list of 1976, and which seniority list cannot be taken as final for the reasons given while disposing of WP(C) No.4163/1992, so as to determine the seniority as on November, 1992.

4. In view of the above, there is no merit in the petition since neither the petitioner has categorically established his seniority as against respondents No. 3 to 18 and nor the requisite three consecutive grades "good" for being given promotion as claimed has been established on record. WP(C) No.4163/1992 & WP(C) No.396/1993 Page 11 of 12

5. Writ petition is accordingly dismissed, leaving the parties to bear their own costs.




                                                  VALMIKI J. MEHTA, J
MARCH        19, 2013
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WP(C) No.4163/1992 & WP(C) No.396/1993                          Page 12 of 12

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