Calcutta High Court
Sankar Prasad Chattakhandi And Ors. vs State Bank Of India And Ors. on 1 October, 1986
Equivalent citations: (1988)ILLJ510CAL
JUDGMENT Samir Kumar Mukherjee, J.
1. These three writ rules arise out of substantially similar facts and raise common questions of law.
2. The petitioners were officers in the Central Accounts Office of the State Bank of India. As they were on the verge of superannuation (58 years of age), their cases for extension upto 60 years of age came up for consideration before the bank authorities and the refusal to grant such extension had led to the institution of the present writ proceedings.
3. During the pendency of the writ proceedings before this Court the petitioners retired.
4. The propriety and correctness of the refusal of extension constitutes the Us, involved in the present proceedings. The entire Us, as I shall presently indicate, hinges on the interpretation of Para. 19 of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979. The apparent simplicity of the said Para. 19 had been overwhelmingly given a pompous burial by the complications, introduced through subtle and adept submissions, made by counsel of the respective parties. Added to it, was the frequent reminder about the far-reaching consequences and effect a judicial interpretation of the said Para. 19 would have on the employment policy of the bank, which made me ponder and reponder with maximum anxiety as a Judge.
5. As stated earlier, the petitioners were refused extension in terms of Para. 19 referred to hereinabove, beyond 58 years of age. Such refusal was by the Review Committee consisting of the Managing Director and the Deputy Managing Director upon acceptance of the opinion of the General Manager (Corporate Operations) to the effect that the petitioners "lacked in potential" and they were "not of continued utility to the bank," as these officers had not the necessary ability and usefulness in fields other than Central Accounts Office. It is pertinent to note, in this connection, that the Chief Manager, Central Accounts Office, where the petitioners were working at the relevant time, recommended grant of extension upto 60 years of age in the cases of all the petitioners.
6. Before I enter into and deal with the respective submissions, made on behalf of the contesting parties, it would be convenient to quote the relevant part of Para. 19, referred to above, which forms the substratum of the dispute involved:
(1) An officer shall retire from the service of the bank on attaining the age of fifty-eight years or upon the completion of thirty years 'service of thirty years pensionable service if he is a member of Pension Fund, whichever occurs first.
Provided that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight years or has completed thirty years 'service of thirty years' pensionable service, as the case may be, should such extension be deemed desirable in the interest of the bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for the purpose of pension.
7. Sri Sakti Nath Mukherjee, appearing in support of the petitioners, has contended, in the first place, that Para. 19 imposes an obligation on the bank to consider the cases of all the retiring officers for extension and thus creates a right in favour of such officers to be considered for such extension. According to Sri Mukherjee, in view of the tremendous advancement in the field of service jurisprudence, commensurate with the concept of a welfare State, it is no longer open to the employer-bank (which is a Governmental authority) to refuse to consider for or to grant, even if the officers satisfy the relevant criteria, extension, by relying on the use of the word "discretion" in the above proviso to the said Para. 19. While developing his above submission, Sri Mukherjee has contended that it is an accepted position in law, without any scope for controversy, that an Executive Government or a Governmental authority does no longer possess an arbitrary power to act. In view of its constitution, Government or Governmental authorities operate under same inherent fetters even in the matter of jobs and granting of largess or contracts or distribution of doles and all such actions must be informed with reasons, which are the only safeguard against mala fide and arbitrary action on the part of such authorities. If actions are not so informed, constitutional safeguards, for example Articles 14 and 16 and/or 19 immediately spring into action and restrain the operation of such actions. In the present case, in spite of the use of the words that "the competent authority may, at its discretion," the bank authorities cannot refuse to recognise the right of an officer to be considered and considered fairly and rationally and without bias or discrimination, for extension. This is notwithstanding the legal position that none can claim extension as of right. According to Sri Mukherjee, the basis on which such a right is claimed, is to be found in the fetters on the powers, exercisable by the Government or Governmental authorities, to act in such matters without arbitrariness and with reasons. Sri Mukherjee justifies this concept from another standpoint. He argues that if an officer is found unfit for extension he has a right to know the reasons for being found unfit; otherwise, he contends, the protection guaranteed by Articles 14 and 16 and/or 19, would be rendered nugatory. Referring to the materials in the present case. Sri Mukherjee has submitted that the proforma, which is a vital document for consideration of the competent authority for the purpose of extension of service and copy of which has been annexed as annexure C to the affidavit-in-reply, clearly indicates the criteria for such consideration. Such criteria are the service record of immediately three preceding years, general intelligence, job knowledge, initiative and resourcefulness, performance while holding current assignment and immediately preceding assignment, recommendation of the controlling authority and recommendation of the Circle Management Committee. In the case of the writ petitioners none of the said criteria, excepting the recommendation of the Circle Management Committee if there be any, can be said to have been unfavourable. It does not appear to be reasonable on the part of the competent authority to refuse extension to the petitioners, though simultaneously granting extension to two other officers of the Central Account Office, whose service records were no better than those of the petitioners.
8. Sri Mukherjee has submitted secondly that the opinion of the General Manager (Corporate Operations) upon consideration of the proforma, is not only irrelevant but is wholly extraneous. The impugned refusal of extension, having been based upon such irrelevant extraneous material, the same, Sri Mukherjee contended, is liable to be struck down.
9. Thirdly, the impugned refusal of extension has also been challenged by Sri Mukherjee on the ground of mala fides He has. built up his case of mala fide on the fact of 40 involvement of the petitioners in an earlier writ proceeding (CO. 5085 (W) of 1981) challenging orders of transfer against them. By getting the said transfer order declared illegal and inoperative, the petitioners annoyed the authorities and incurred their wrath with the result that the competent authority did not consider the cases of the petitioners for extension in a dispassionate manner but with a closed and motivated mind. To lend support to the said allegation of mala fide, Sri Mukherjee, on behalf of the petitioners, referred, in the above context, to the specific cases of extension granted to the two other officers Sri Saradindu Sen and Sri Ramjoy Bhattacharjee, who were not involved in the aforesaid writ proceedings against transfer orders but whose service records did not disclose better criteria than those of the petitioners and who had been working in the Central Accounts Office and were not moved outside the same even after the disputed extension. He has further relied upon the uncontroverted allegation of the petitioners that except the petitioners, no other officer has been refused extension up to 60 years in the history of the Central Accounts Office.
10. It Sri Subrata Roychowdhury, appearing on behalf of the bank authorities, has strongly contested the propriety and correctness of the submissions, made by Sri Mukherjee on behalf of the writ petitioners.
11. Sri Roychowdhury has contended, in the first place, that the writ petitions are liable to be dismissed in the absence of any pleading about existence of any right, statutory or contractual, in favour of the petitioners. Sri Roychowdhury's stand is that, in the absence of such pleading, no writ of mandamus can issue.
12. Secondly, it has been contended by Sri Roychowdhury that, after the attainment of the age of superannuation by the petitioners all their rights came to an end and, in that matter neither the bank nor the petitioners had any option. The language of Para. 19 according to Sri Roychowdhury was mandatory and even the bank had no authority to keep the service life of the petitioners continuing. The proviso, according to Sri Roychowdhury, was an enabling provision, by which the bank had the "discretion" to grant extension to an officer beyond the age of 58 years on fulfilment of the basic requirement of that proviso, namely, when the continuance of the officer after superannuation could be found desirable in the interest of the bank. Sri Roychowdhury was emphatic about the discretionary nature of the bank's authority and strongly refuted existence of any obligation on the part of the bank. In that context, his further submission was that, even if the bank refused to consider the case of any particular officer, the officer had no right to claim such consideration, not to speak of challenge being thrown to the same as arbitrary, mala fide or motivated.
13. Thirdly, Sri Roychowdhury has contended that, in the cases of the petitioners, the question about the nature of the rights and obligations of the respective parties under Para. 19 has become academic as on consideration, the petitioners have been found not fit for such extension.
14. In support of his above contentions, Sri Roychowdhury has produced a number of service records, including those of the petitioners and of Sri Ram joy Bhattacharjee and Sri Saradindu Sen, which, according to Sri Roychowdhury, unmistakably establish that there were cogent reasons for refusal of extension to the petitioners and grant of extension to the other two officers. Indeed, Sri Roychowdhury's argument is that the fast development of the bank has an important bearing on the bank's decision and the desirability of extension of service of an officer in the interest of the bank cannot be said to exist, if he is not fit to meet the challenge of such fast development and if his service cannot be utilised by the bank except for a limited purpose as in the case of the petitioners, whose utility, admittedly, so to say, was confined to the Central Accounts Office.
15. Fourthly, Sri Roychowdhury has assailed the merit of the allegation of mala fide of the petitioners. Sri Roychowdhury has submitted, on the basis of the materials produced, that the refusal of extension is clearly justifiable and fully justified and the absence of any influence on the mind of the competent authority due to involvement of the petitioners in the tranfer cases in question is well established.
16. Lastly, Sri Roychowdhury has contested the correctness of the allegations of illegality of the refusal on the ground of consideration Of alleged irrelevant and extraneous material, to wit, the opinion of the General Manager (Corporate Operations) by producing office order and memorandum showing that he was equivalent to a Circle Management Committee,, as far as the Central Accounts Office was concerned, in the hierarchy of the bank's administration.
17. On behalf of both the contesting parties, a number of decisions of the Supreme Court as also of High Courts have been citer' and relied upon, which will be examined by me at appropriate places.
18. I propose now to deal with the first point about maintainability of the writ application in the absence of any pleading about existence of any judicially enforceable legal right as argued by Sri Roychowdhury. The point, in the present cases need not detain us long, as the instant writ petitions, containing prayers for writ of mandamus, demanding forbearance on the part of the respondents, embody the necessary and essential averments, on which such prayers can be sustained.
19. On a fair reading of the said averments, it is sufficiently clear that the petitioners claim a two-fold right a right to be considered for extension upon attainment of the age of superannuation and a right to be fairly considered for the same, untainted by bias, arbitrariness, malice or discrimination and their claim for relief is based on the violation of this right by the respondents. Whether, in the instant case, the petitioners have succeeded in establishing this right and its alleged violation is a matter on the merits but the pleading of the same, as noted above, in the light of the other allegations made, is sufficient for the maintainability of the writ applications and cuts at the root of Sri Roychowdhury's objection. 1 am, therefore, not inclined to hold that the petitions are not maintainable on the ground of absence of proper and appropriate pleadings and I overrule Sri Roychowdhury's submission on the point.
20. The next question, which I take up for consideration, is of much greater substance and importance, on the decision of which the fate of the Hs largely depends. It may be noted, at this stage, that both the parties base their respective claims on the relevant part of Para. 19(1) of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979.
21. I have already quoted the said relevant part of Para. 19(1) which on proper analysis, resolves itself into two interlinked or interconnected parts, the second part being constituted by a proviso. The substantive part of the said sub-paragraph provides for retirement of an officer on the happening of the contingency, mentioned therein, whereas the second part embodies in the form of a proviso, a provision for extension after age of superannuation on fulfilment of the conditions, mentioned in the said proviso. As I have already noted, according to Sri Mukherjee, the said proviso really creates a two-fold right, with corresponding obligation against the bank authorities, in favour of every officer on the verge of superannuation, namely, a right to be considered for extension and a right to a fair and rational consideration, untainted by any bias, discrimination or malice. According to Sri Roychowdhury, the said proviso does not create any right whatsoever in favour of any officer but merely enables the bank authorities to grant extension to any of such officers after superannuation at its discretion provided the bank authorities are satisfied that such extension would be desirable in the interest of the bank. Sri Roychowdhury is categorical in his stand and has even gone to the length of asserting that the bank is not obliged to consider for extension the case of every officer on the verge of superannuation. In that background Sri Roychowdhury has emphatically submitted that the question of fair or rational consideration, untainted by bias, discrimination or malice does not arise.
22. In my view, the contention of Sri Mukherjee has great force and deserves acceptance for reasons, which I shall presently indicate.
23. As seen above the relevant part of Para. 19(1) consists of two parts a substantive part and a proviso, and, under well-known canons of construction, the proviso is the controlling part. It controls the substantive part and regulates its operation (aide Craies "Statute law" page 218 lines 1 to 4, 7th Edn., and Maxwells, "The Interpretation of Statutes," 12th Edn., pages 190-191) and the substantive part cannot be read without the proviso. The effect is that the termination of service life, as contemplated by the substantive part, becomes subject to the proviso and the proviso must be given its full effect before determining such termination under the substantive part. I am unable to accept Sri Roychowdhury's submission that the substantive part should be applied to terminate the service life on superannuation before invoking the proviso for considering or applying the same. The service life would come to an end under the substantive part only when the extension, contemplated by the proviso, is not available or only when such extension is refused on cogent reasons upon a due consideration of the relevant materials.
24. The dominant consideration must, in the above context, rest on the proviso and, for a solution of our present problem, we must look to its interpretation. No doubt, the proviso uses the words "the competent authority may at its discretion extend the period of service of a superannuated officer" but such discretion, in the context of radical changes and rapid developments that have taken place in the field of service jurisprudence cannot be said to be an absolute or unfettered discretion but a discretion, the exercise of which must be based on reasons. If any authority is needed for the purpose, reference may be made to the case of State of Gujarat v. Krishna Cinema (A.I.R.) 1971 S.C. 1650 and the case of Kasturilal v. State of Jammu and Kashmir (A.I.R) 1980 S.C. 1992. The archaic law of master and servant has passed into fossils and the present goal is a welfare State, so much so that judiciary, which is known as the sentinel of democracy, has unhesitatingly declared, by progressive interpretation of Articles 14, 16 and 19 that an Executive Government or a Governmental authority, in view of its inherent constitution, cannot act, even in the matter of distribution of a largess or allotment of contracts including service contracts, with the same freedom as that of a private employer. Every Governmental action or action of Governmental authorities must be free from the vice of bias, discrimination, arbitrariness and mala fides. That is why the practice of laying down procedures in the performance of acts by the Executive Government, public authorities or Governmental authorities, has received increased recognition from day to day and it is now an axiomatic truth that such authorities must record the reasons for any particular action so that the protection, guaranteed by Articles 14, 16 and 19 may become effective and available, as desired by the makers of the Constitution, such recording of reasons acting as an essential safeguard and restraint against arbitrariness of such authorities. Whenever a challenge is thrown, hands of justice extend themselves to strike at the very root of illegality and injustice, emanating from such arbitrary actions. No doubt it is well accepted that an officer, as in the present case, cannot claim an extension as of right. But at the same time, it is also well established that he can claim consideration for such extension and fair and bona fide consideration for such extension as of right and can claim to be apprised of the reasons, when such extension is refused, to object to an arbitrary and unjust refusal.
25. In the present case, this right emanates from Para. 19(1) the substantive part, read with the first proviso, which, as stated above are interlinked or inter-connected and cannot and should not be read disjunctively in the light of the relevant constitutional provisions of Articles 14 and 16 which embody the principle of equality and the relative rule of administrative law judicially noted as well established in the decision of the Supreme Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India and Ors. 1979-II-L.L.J.-217 where the Court, speaking through Bhagwati, J., as His Lordship then was, accepted the growth of the aforesaid concept of equality and reasons in actions of the Executive Government, Governmental authorities or public authorities not merely as ramification of Article 14 but as a rule of administrative law judicially evolved to sub-serve the socio-economic justice, which is the conscious end of State policy. The said decision extended and reaffirmed the principle, laid down earlier in the cases of A.S. Ahluwalia v. State of Punjab (A.I.R.) 1975 S.C. 984 Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr. 1975-I-L.L.J.-399 and Erusian Equipment and Chemicals v. State of West Bengal (A.I.R.) 1975 S.C. 266. In the case of Ajay Hasia v. Khalid Mujib Sehravardi and Ors. 1981-I-L.L.J.-103 the Supreme Court quoted with approval the principle laid down in Maneka Gandhi case (A.I.R.) 1978 S.C. 597 inter alia, to the effect that an action which is arbitrary is necesarily involved in negation of equality and no attempt should be made to truncate the great equalising principle enunciated in Article 14 of the Constitution which is the pillar, on which rests securely the foundation of democracy and republic. The Court forbade any pedantic or lexicographic approach in the matter of application of Article 14 of the Constitution. The Supreme Court reiterated the principle laid down in the case of E.P. Royappa v. State of Tamil Nadu 1974-I-L.L.J.-172 to the effect that Article 14 is of a highly activist magnitude and embodies a guarantee against arbitrariness and finally concluded by saying that whenever there was arbitrariness Article 14 immediately sprang into action to strike down such arbitrary State action. In that background of evolution of the principle of reasons, equality and fairness in actions of public authorities, Sri Roychowdhury's sweeping argument that mere user of the word "discretion" is sufficient to vest the bank authorities with absolute and unfettered discretion, both in the matter of consideration for extension as also in the matter of grant of extension, cannot be accepted as in the light of the said principle, the touchstone of this discretion will be the trinity reason, equality and fairness and the validity of its exercise will have to be tested on the same.
26. In my view, it is obligatory on the bank authorities under Para. 19(1) read with the first proviso as quoted above, to consider the case of every officer on the verge of superannuation for extension and to consider the same fairly and rationally and without malice or arbitari-ness or offending discrimination. Sri Mukherjee is right in his submission that the proviso to sub-para. (1) of Para. 19 creates a right in favour of a retiring employee to be considered for extension without discrimination and arbitrariness on the part of the authorities and consequently a right to object to an arbitrary and unjust refusal of extension. I am fortified in my view by the unreported decision of the Division Bench of this Court in F.M.A.T. No. 62 of 1979 (Kaistubh Kanti Maity and Ors. v. State of West Bangal and Ors.) wherein Chittatosh Mookherjee, J., delivering the judgment on 31st May 1979 observed:
that although holder of an officiating or temporary appointment has no irrevocable right to the post, it does not necessarily follow that such holder of a temporary or officiating appointment has no right whatsoever to challenge his reversion. When administrative directions are illegal, ultra vires or arbitrary or for collateral purpose, the Court under Article 226 may interfere.
The distinction sought to be drawn by Sri Roychowdhury by emphasising the fact that the services of the appellants in the above appeal were dispensed with by obtaining services of other similarly placed employees to satisfy the need for such officiation does not commend itself to me as in the present case Sri Ramjoy Bhattacharjee and Sri Saradindu Sen were granted extension to serve the Central Accounts Office.
27. The next point which arises for consideration is whether in the instant case the discretion under the proviso has been properly exercised in the light of the tests laid down above for an exercise of the same or in other words whether in refusing extension to the petitioners while giving the same to Bhattacharjee and Sen, the bank authorities have acted according to the norms laid down by the Supreme Court and have not been guilty of deviation into arbitrariness, mala fide and offending discrimination. On this aspect of the matter two important questions arise for immediate consideration:
(1) The criteria or the materials, on the basis of which the opinion as to desirability of continuance of an officer beyond superannuation in terms of Para 19 first proviso, may be arrived at; and (2) who are the authorities empowered to form such opinion.
28. On the above, both the contesting parties have referred to and relied on the contents of the circular, dated 10th September 1976, which is annexure A to the supplementary affidavit of Jagadish Chandra Saha, dated 21st March 1984, and the proforma annexed thereto, as according to both, the relevant criteria and authorities are to be found in the same.
29. Sri Sakti Nath Mukherjee, appearing on behalf of the writ petitioners, while accepting that, in case of extension beyond 58 years of age the tests may be rigid, has strongly argued that the above proforma clearly specified such criteria or materials as the service records of immediately three preceding years, general intelligence, job knowledge, initiative and resourcefulness, performance while holding current assignment and immediately preceding assignments, recommendations of the controlling authority and recommendations of the Circle Management Committee. On the basis of such materials, according to Sri Mukherjee, the competent authority is to form its opinion. Sri Mukherjee has contended that as, apparent from above, the opinion of the General Manager (Corporate Operations) is a wholly extraneous matter and the impugned refusal of extension to the petitioners having been based on consideration of such opinion of the General Manager (Corporate Operations) is liable to be struck down. Sri Mukherjee has further contended, in this connection, that the opinion of the General Manager (Corporate Operations) again being based on a consideration of absence of utility of the petitioners in departments other than the Central Accounts Office is wholly irrelevant as even on the bank's own accepted policy, the petitioners were not liable to be transferred outside the Central Accounts Office which would remain unaltered even if the bank succeeds in the pending appeal from the transfer case and thereby obtains a reversal of the finding of G.N. Ray, J., in the writ case before him to the effect that the transfer of the petitioners in the said case including present petitioners, were not to serve any interest of the bank but would operate to its detriment. In support of his above arguments. Sri Mukherjee has drawn my attention to the failure of the bank authorities to place any material before this Court to show that any officer of the Central Accounts Office has been transferred out of it in violation of the said policy, the instances cited by the bank being of officers who did not belong to the Central Accounts Office and the fact that even the two officers, namely Sri R. Bhattacharjee and Sri S. Sen who were granted extension on the basis that they were willing to accept transfers outside the Central Accounts Office, have not been so transferred and that their performances, which fell for consideration of the competent authority, were in the Central Accounts Office only.
30. Sri Roychowdhury, appearing for the respondent bank authorities, has submitted that the desirability of extension of the service of an officer beyond the age of superannuation has to be judged not merely on the criteria indicated by Sri Mukherjee but also upon consideration of his continued utility or potentiality bearing in mind the well-known fact that in the context of the fast development of the bank, the number of its branches has increased from 400 in 1955 to 6500 and the strength of staff has gone upto 2,00,000 to render effective the policy of the bank to extend the facilities of banking service to the rural people. According to Sri Roychowdhury, an officer, who belongs to Managerial cadre, is expected to play a dynamic role in meeting new challenges and his service can be said to be of continued utility only when the same can be utilised by the bank by transferring him to any establishment or branch according to exigencies. On the basis of the aforesaid stand, Sri Roychowdhury has contended that willingness and adaptability of the officer to meet new challenges are really the overriding factors for consideration.
31. Sri Roychowdhury also challenges the propriety of the submission of Sri Mukherjee to the effect that the opinion of the General Manager (Corporate Operations) is a wholly extraneous material. According to Sri Roychowdhury the Central Accounts Office, in the administrative hierarchy, is under the control of the General Manager (Corporate Operations), who is equivalent to a Circle Management Committee in respect of the regional office or branch office in a circle. As the opinion of the Circle Management Committee is a relevant material in the matter of grant of extension of officers belonging to such regional office or branch office, the opinion or recommendation of the General Manager (Corporate Operations) is similarly relevant in the matter of grant of extensions to officers attached to the Central Accounts Office. In this connection, reliance was placed by Sri Roychowdhury on an office order, dated 19th March 1981, a xerox copy of which was placed before me after service on the learned advocate for the petitioners and also service 40 records of a number of officers belonging to the different departments to substantiate the above mentioned procedure. In support of the decision of refusal of extension in the cases of the writ petitioners and grant of extension in the cases of Sri R. Bhattacharjee and Sri S. Sen, Sri Roychowdhury has taken the stand that the incontrovertible position that the writ petitioners' service could be best utilised and utilized only in the Central Accounts Office justified the correctness of the bank's decision as the other two officers concerned, namely, R. Bhattacharjee and S. Sen were willing to perform duties even outside the Central Accounts Office and the bank rightly found desirability in their continuance after superannuation. Sri Roychowdhury was very emphatic in arguing that from the notes of the General Manager (Corporate Operations), xerox copies of which were produced, relating to the refusal of extension to the writ petitioners, it would be absolutely clear that he was not acting under any malice for the writ petitioners' involvement in the transfer case but his entire decision was bonafide arrived at > upon consideration of the bank's overall interest. Sri Roychowdhury has produced xerox copies of the relevant records relating to a number of cases of extension including those of the writ petitioners and Sri Bhattacharjee and Sri Sen.
32. In my view, the contention of Sri Mukherjee that the recommendation of the General Manager (Corporate Operations) is an extraneous material has no substance. The records produced on behalf of the respondents clearly establish that the Central Accounts Office is in the organisational hierarchy, under the control of General Manager (Corporate Operations) as a regional office is under the control of the Circle Management Committee. The proforma clearly justifies the relevance of the recommendation of the Circle Management Committee. The suitable amendment in the proforma to find a place for the recommendation of the General Manager (Corporate Operations) as far as the Central Accounts Office is concerned is not arbitrary nor unreasonable but fits in with the propriety of such administrative procedure.
33. Coming to submissions of Sri Mukherjee on the substantive merits of the rejection by the competent authority of extention in the cases of the writ petitioners I would like to consider certain factual materials, available from the records, produced before me.
34. (1) Cases of all the writ petitioners as also of Sri R. Bhattacharjee and Sri S. Sen were for consideration of desirability of extension after attainment by them of 58 years of age and the disputed extensions were to be operative more or less between February 1982 and February 1984 except in the case of petitioner S.C. Bose, who attained the age of 58 years in 1983 and the age of 60 years on 1st August 1985.
(2) The service particulars, incorporated in the relative proforma, were under the headings of general intelligence, job knowledge, initiative and resourcefulness for three years preceding, namely from 1978 to 1980 and 1980 to 1982 in the case of Sri S.C. Bose and the recommendations of the Chief Manager concerned of the Central Accounts Office for such extension appear to have been based on a consideration of such particulars.
(3) In the case of Sri Chattakhandi and Sri N.L. Ghosh as also Sri S. Sen and Sri R. Bhattacharjee, the Chief Manager Sri Mahendru's recommendations were sent to the Deputy Managing Director (Personnel and Services) under a forwarding letter, dated 19th November 1981, which had a post-script (P.S.) "In this connection we may add that S.P. Chattakhandi and N.L. Ghosh are two of the petitioners in the High Court case CO. No. 5085 (W) of 1981 against the bank's orders for their transfer as advised by you in your letter No. SF 7/9A/110, dated 15th June 1981 after enumeration of the relevant comparative remarks, namely:
(a) Sri Chattakhandi Areas in which the officer has shown good result:
A sincere and dependable officer, has done commendable good work wherever he is posted.
Potential He is capable of rendering further useful service to the bank
(b) Sri N.L. Ghosh Areas in which the officer has shown good result:
Hard working and conscientious in his duties in dealing with refused application (Provident Fund) of claimants.
Potential:
His continued services upto 29th February 1984 will be useful to the bank.
(c) Sri S. Sen.
Areas in which the officer has shown good result:
Sri Sen has done commendable good work in clearing a large number of long outstanding-.,. S.B.I, extra general account. He has also reorganised the reconciliation department to give a thrust in writing to the entries in branch clearing general accounts.
Potential:
His continued services upto 31st January 1984 can be very usefully utilised in any assignment in the bank including challenging positions in the reorganised set up.
(d) Sri Ramjay Bhattacharjee Area's in which the officer has shown good result:
He has kept the balancing of S.B.I. Provident Fund account upto date by putting extraordinary hard work.
Potential:
His continued service upto 29th February 1984 will be useful to the bank.
(4) In the case of Sri S.C. Bose the recommendation for the extension was made by the Chief Manager, Sri P. V. Rao, and relevant comparative remarks was as follows:
Areas in which the officer has shown good result:
(i) He has thorough grasp of the problems connected with the reconciliation of entries reported by branches in the Schs. 13 and 14. Considering the large amount of arrears relating to the said reconciliation work, the extension of service by two years-if given to the official would be in the interest of the bank as he has the requisite capabilities and sincerity to deal with the object.
Potential:
His continued service from 6 August 1983 to 31 February 1984 will be beneficial to the bank.
(5) The cases of Sri S.P. Chattakhandi and Sri NX. Ghosh as also Sri S. Sen and Sri R. Bhattacharjee appear to have been referred to the General Manager (Corporate Operations) on 24 November 1981 for his recommendation On the same day, the General Manager ("Corporate Operations), Sri Nayar, appears to have given his views recommending extension in the cases of Sri Sen and Sri R. Bhattacharjee in agreement with the Chief Manager in the following words: "I agree with the Chief Manager, C.A. extensions recommended for two years", and non-extention in the cases of the writ petitioners Sri. S.P. Chattakhandi and Sri N.L. Ghosh in disagreement with the Chief Manager for reasons recorded in his relative notes, dated 24 November 1981 and on 11th January 1982 the review committee consisting of the Managing Director and the Deputy Managing Director considered the matter and accepted the recommendation of non-extension of the General Manager (Corporate Operations) in the cases of the writ petitioners S.P. Chattakhandi and N.L. Ghosh merely recording "Extensions not granted".
(6) In the case of writ petitioner, Sri S.C. Bose, we have not got on the record the forwarding letter of the Chief Manager, sending his recommendations for extensions,.
to the higher authorities for consideration but the General Manager (Corporate Operations)' recommendation of non-extension in disagree ment with the Chief Manager appears to have been given in a note, dated 27th July 1983 and, on the same day, the review committee (Managing Director) appeared to have accepted the same by their note of even date which runs as follows:
We have very carefully considered the matter. We have perused the confidential reports on Sri Bose the recommendation for extension, made by the Chief Manager, Central Accounts Office, and also the recommendation for non-extension made by the General Manager (Corporate Operations). We are of the view that Sri S.C. Bose is just a routine worker. He lacks in potential and the attitude displayed by him clearly shows that he is not an officer who can meet challenges. We accordingly decide that no extension should be given to Sri Bose.
(7) As between the petitioners on the one hand and Sri R. Bhattacharjee on the other, the records, from which the relevant extracts have been quoted above, do not disclose any distinction, which would go against the petitioners even remotely except the petitioners' involvement in the writ proceedings against the transfer orders and yet Sri R. Bhattacharjee got extension while petitioners were denied the same.
35. Under the relevant part of Para. 19(1) including the proviso, as quoted above, the matter of extension has to be decided by the competent authority and under circular, dated 22nd October 1982, haying retrospective effect from 1st October 1979 (vide the supplementary affidavit, dated 6th February 1984 of Sri P. V. Rao) the said competent authority is the review committee consisting of the Managing Director (which term includes also the Deputy Managing Director) and it is this review committee which has granted extension to Sri S. Sen and R. Bhattacharjee and refused extension to the writ petitioners, accepting in each case the recommendation of the General Manager (Corporate Operations) and the reasons given by him.
36. As stated above in the case of writ petitioners Sri Chattakhandi and Sri N.L. Ghosh the review committee merely recorded "extensions not granted" and in the case, of writ petitioner Sri S.C. Bose they gave a note which, in substance, repeated only the observations of the General Manager (Corporate Operations) that Sri Bose is just a routine worker. He lacks any potential and the attitude displayed by him clearly shows that he is not an officer who can meet the challenges as the ground of refusal of extension.
37. It is sufficiently clear from what I have stated above that the impugned decisions of the review committee in the cases of the writ petitioners Sri Chattakhandi and Sri Ghosh contain no reasons whatsoever and cannot be said to be informed with reasons unless such reasons are extracted from the relative notes of the General Manager (Corporate Operations) and in the case of Sri S.C. Bose also the position is substantially similar. In short, there the said impugned decisions are wholly founded on relative notes of the General Manager (Corporate Operations) and their validity will depend upon the validity of the said notes in the light of the above tests. I have, therefore, to see how far the relative notes of the General Manager (Corporate Operations) satisfy the above tests laid down by the Supreme Court.
38. The notes in question do contain reasons and may, therefore, be said to be informed with reasons and so the point before me narrows down to the consideration whether these reasons are valid in law and whether the notes in question are not tainted with vices which will invalidate them.
39. For the above consideration it is necessary to bear in mind:
(i) That in the case for extension upto 60 years none of the officials concerned except the writ petitioners was involved in the writ cases before the High Court against the transfer policy of bank and in no other case in the Central Accounts Office except the writ petitioners has such extension been refused.
(ii) That a perusal of relevant notes of the General Manager (Corporate Operations) on which, as seen above, the impugned 1Q decisions are founded, leaves no doubt in the mind that the extensions in question were refused to the writ petitioners on account of their lack of potentiality and negative attitude in refusing to meet the it challenge of transfer as emanating from their filing of the writ petitions against the bank's transfer orders.
40. This is sufficiently demonstrated by the General Manager (Corporate Operation's own words "I feel that their reluctance to accept tranfer is an acceptance of limitations of their capacity at this age," which had obvious reference to the said writ petition as the source even though the same was expressly acknowledged as irrelevant for consideration.
(iii) That Sri Sen and also Sri Bhattacharjee (whose performance is in no way better than the petitioners) were given extensions only because they were ready and willing to accept transfer and did not challenge the same whereas the petitioners were refused extension as they had challenged the transfer orders.
(iv) That in the matter of the extension in question the petitioners were discriminated against because of their involvement in the writ proceedings against the transfer orders as person with no better performance records than the petitioners was 40 given extension as he was not involved in the transfer or similar proceedings.
(v) That in the case of Sri S.P. Chattakhandi and Sri N.L. Ghosh the papers reached General Manager (Corporate Operations) on 24th November 1981 and he gave his elaborate dissenting note on the very same day, in case of Sri S.C. Bose, the General Manager (Corporate Operation)'s eleborate note against the Chief Manager's recommendations reached the review committee on 27th July 1983, and on the same day the review committee gave its note, which required consideration of the two opposite views of the General Manager and Chief Manager. The time factor on either occasion may well militate against a proper and dispassionate consideration of the recommendations.
41. From what I have stated above, I am clearly of the opinion that the petitioners were refused extension solely because of their involvement in the writ proceedings against the bank's transfer orders and in the circumstances, such refusal would be tainted with the vice of arbitrariness and unreasonableness as also offending discrimination and malice in law and in fact as well.
42. The authorities already cited would amply support my above conclusion but to them I would like to add one more, namely Venkataraman (Smt. S.R.) v. Union of India and Anr. 1979-I-L.L.J.-25 as it contains a lucid exposition of the relevant principles and the quotations from higher authorities to elucidate the same.
43. Before concluding the above discussion, I deem it my duty to indicate briefly my reasons for not applying to the instant cases, the decisions cited by Sri Roychowdhury, namely, P.L. Dhingra v. Union of India (A.I.R) 1958 S.C. 37, Narasimhachar v. State of Mysore 1960-I-LU-798, Kailash Chandra v. Union of India 1961-II-L.L.J.-639, State of Assam v. Premdhar Barua (A.I.R.) 1970 S.C. 1314, S.N. Pallegal v. State of Mysore 1973-I-L.L.J.-114 and B. Narayana Murti v. State of Andhra 40 Pradesh (A.I.R) 1971 S.C. 1716.
44. Those decisions are, in my view, clearly distinguishable as in the first place they dealt with rights to get extension after retirement and not a right to be considered and considered fairly for extension as in the instant cases. There is no controversy raised even on behalf of the petitioners that the petitioners cannot claim an extension as of right unless they fulfill the criteria given in Para. 19 of the regulations mentioned above. The only right the petitioners claim is that they must be considered and considered fairly upon attainment of the age of superannuation for extention and secondly because of the proviso to Para. 19(1) as interpreted by me there being no such provision in the said cited decisions. Moreover, it has to be remembered that the above cited decisions might not fit in with the development of administrative law through subsequent judicial decisions culminating in the overriding judgment of the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India and Ors. (supra). As to the unreported Patna case Harananda Singh v. State Bank of India and Ors. C.W. J.C. No. 62 of 1982), so strongly relied upon by Sri Roychowdhury it is enough to say that that also is clearly distingushable as in that case there were no materials to show discrimination or mala fide and the right claimed was different from the claim being of a right to get extension and not a right to be considered and considered fairly for extension as in the instant cases which was rightly refused.
45. On my above findings I am bound to hold that the refusal of extension to the petitioners is arbitrary, unreasonable and utterly discriminatory so as to violate Articles 14 and 16 of the Constitution and is also vitiated by malice which law abhors. I hold accordingly and strike down the impugned orders of refusal.
46. Since the petitioners have already retired the question naturally arises as to what relief they would be entitled to even on the basis of the findings in their favour as indicated above. The petitioners having already attained the age of 60 years upto which they claimed the extension in the present rules, there is no scope for a direction for extension of their services by the bank authorities but that does not mean that this Court of Equity is helpless in the matter of granting relief to the petitioners. 1 have already found earlier that officer with no better service records had been granted extension up to 60 years of age. Bearing that in mind coupled with the fact that I have not accepted the reasons of refusal of extension in the case of the petitioners, I would direct the bank authorities, the respondents, to treat the petitioners as if in service on extension till 60 years of age and grant necessary pecuniary relief on that basis. This is a procedure which received judicial approval as discernible from the principles laid down in the cases of Sengara Singh and Ors. v. State of Punjab and Ors. 1984-I-L.L.J.-161 and State of West Bengal v. Tapan Kumar Sen 1982-I-L.L.J. 432 and in consequence with the same and admirably fits in with justice and equity in the instant case. Reference may also be made in the point to the case of Gurdial Singh Fijji v. State of Punjab and Ors. 1979 (1) S.L.R. 864.
47. I would accordingly make the rules absolute to the above extent and grant pecuniary reliefs to the petitioners as indicated herein before. The respondents are directed to forbear from giving any effect or further effect to the impugned refusal of extension to the petitioners and to treat the petitioners as in service up to the age of 60 years, and to grant pecuniary benefits due to them on that basis in accordance with law. Such benefits should be disbursed within three months from this date. The respondents are further directed to pay 60 Gold Mohars to each of the petitioners by way of costs of these proceedings.