Gauhati High Court
Debashish Roy vs The United Bank Of India & Ors on 11 August, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WRIT PETITION (C) NO.3362 OF 2012
Petitioner :
Shri Debashish Roy,
Son of late Nalini Mohan Roy,
Chief Manager, United Bank of India,
Nagaon Region Office, Nagaon, Assam,
(On deputation to Indian Institute of Bank
Management, Guwahati).
By Advocates:
Mr. M. Chanda,
Mr. S. Dutta,
Mr. S. Choudhury,
Mr. S. Nath.
Respondents:
1. United Bank of India,
Represented by the Chairman and Managing Director,
United Bank of India Head Office,
11, Hemanta Basu Sarani,
Kolkata-700001.
2. General Manager,
(Resource Management)
United Bank of India, Head Office,
11, Hemanta Basu Sarani,
Kolkata-700001.
3. Assistant General Manager (HRM),
PA (OE) Division,
United Bank of India,
11, Hemanta Basu Sarani,
Kolkata-700001.
4. Union of India,
Represented by its Secretary,
Government of India,
Ministry of Finance,
Department of Financial Services,
Jeevan Deep, 3rd Floor,
Parliament Street,
New Delhi.
5. Shri Ashwini Kumar Jha. SPF No.27686
W rit P etition (C) No.3362 / 2012 P age 1 of 17
6. Shri Prabir Kumar Tah. SPF No.28871
7. Shri Upendra Sabar. SPF No.30325
8. Shri Niranjan Kumar Jain. SPF No.27846
9. Shri Bhajan Chandra Ray. SPF No.22547
10. Shri Prabhat Ranjan Mohanty. SPF No.26693
11. Shri Prabhata Kumar Satapathy. SPF No.27404
12. Shri Ajaya Kumar Mohanty. SPF No.27063
13. Shri Parikshita Panda. SPF No.26992.
14. Shri Subhendra Kumar Mahapatra. SPF No.27292
15. Shri Amarendra Kumar Roy. SPF No.7574
16. Shri Manjit Singh Kochar. SPF No.27550
17. Shri Umesh Chandra. SPF No.27827
18. Shri Prasanna Kumar Bal. SPF No.27354
19. Shri Dhurjati Prasad Pal. SPF No.27556
20. Shri Amitabha Sengupta. SPF No.26275
21. Shri Bijoy Kumar Mohanty. SPF No.24484
22. Shri Sanjaya Nand. SPF No.27723
23. Shri P K Ganesh. SPF No.27440
24. Shri Bipin Bihari Sahoo. SPF No.28975
25. Shri Anand Kumar. SPF No.28574
26. Shri Arun Kumar Singh. SPF No.28538
27. Shri Pradeep Kumar Mishra. SPF No.28972
28. Shri Kanchan Chakrabarty. SPF No.28940
29. Shri Raj Kishore Nayak. SPF No.28938
30. Shri Janmejay Dikshit. SPF No.29076
31. Shri Rama Ch. Mahanta. SPF No.29001
32. Shri Sanjoy Roy. SPF No.13397
33. Shri Kajal Banerjee. SPF No.20259
W rit P etition (C) No.3362 / 2012 P age 2 of 17
34. Shri Hirendra Narayan Ghosal. SPF No.21526
35. Shri Alok Datta. SPF No.22990
36. Shri Skand Kumar Pandey. SPF No.25137
37. Shri Sakshi Gopal Saha. SPF No.24856
38. Shri Akshaya Kumar Behura. SPF No.25529
39. Shri S. Rajaguru. SPF No.33687
40. Shri Milind Pravakar Ekbote. SPF No.27724
41. Shri Subhendu Chattopadhyay. SPF No.33780
42. Shri Subrata Mishra. SPF No.27542
43. Shri Mrinal Kanti Paul. SPF No.17296
44. Shri Dipankar Dev. SPF No.20919
45. Shri Sushanta Kr. Pal. SPF No.26479
46. Shri Mithilesh Kr. Srivastava. SPF No.25706
47. Shri Tapan Kr. Patra. SPF No.23233
48. Mrs. Krishna Ganguly. SPF No.20109
49. Shri Jagnnath Sur. SPF No.22170.
Advocates:
Mr. M.K. Choudhury, Sr. Advocate,
Mr. M. Dutta.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN.
Date of hearing : 17-07-2014
Date of Judgment : 11-08-2014
J U D G M E N T AND O R D E R (ORAL)
By way of this petition under Article 226 of the
Constitution of India, petitioner seeks quashing of impugned
Annexure-II circular dated 10-05-2012 as well as the selection of
W rit P etition (C) No.3362 / 2012 P age 3 of 17
respondents 5 to 49 based on the said circular for promotion from
Senior Management Grade Scale IV to Senior Management Grade
Scale V in the United Bank of India. Petitioner further seeks issuance
of a writ of mandamus to promote him from Senior Management Grade
Scale IV to Senior Management Grade Scale V by holding fresh
selection.
2. Case of the petitioner is that he had joined the United
Bank of India (Bank), a public sector bank as Probationary Officer in
December, 1985. He has risen through the ranks and is now serving
as Senior Management Grade Scale IV to which grade he was
promoted on 24-12-2009. Next promotion due is to Senior
Management Grade Scale V i.e. the cadre of Assistant General
Manager.
3. As per the revised promotion policy of the Bank vide
circular dated 09-02-2012, promotion from Senior Management Grade
Scale IV to Scale V is through the merit channel for which applications
are invited from the eligible officers to participate in the promotion
exercise. Minimum experience required is three years of service in the
scale below i.e., in Scale IV, which is relaxable upto a maximum limit
of one year by the Board of Directors of the Bank. Overall length of
service required is twelve years. It will be mandatory to pass an
examination test for computer literacy and computer knowledge. There
shall be group discussion to assess the communication, conceptual
and leadership capabilities of the candidates for such promotion. For
such promotion, the eligible candidates are required to be called for
interview in order of seniority, the zone of consideration being in the
W rit P etition (C) No.3362 / 2012 P age 4 of 17
ratio of 1:3 which may be increased to 1:4 if required number of
suitable persons are not available. Annual Performance Appraisal
Report (APAR) of last three years would be considered. APAR would
carry 50 marks whereas interview including group discussion would
be of 50 marks, total 100.
4. Thereafter, the impugned circular dated 10-05-2012 was
issued by the Bank. By the said circular, applications were invited
from eligible officers for promotion from Senior Management Grade
Scale IV to Senior Management Grade Scale V. It was mentioned that
there were 43 vacancies in Scale V, subject to change. As per eligibility
criteria mentioned, an officer in Scale IV should have completed
minimum of three years of satisfactory service in that Scale as on
01-04-2012 and he should have completed a minimum of twelve years
of service in the Bank. The candidate should have been a branch head
for at least three years. It was remarked that the competent authority
had allowed relaxation in the minimum satisfactory experience in
Scale IV by one year for the said process. Thus, all those officers who
had completed minimum two years of satisfactory service as on 01-04-
2012 in Scale IV were declared eligible to apply. Moreover, only such
candidates were made eligible to participate in the promotion process
who had scored minimum 40% marks in computer literacy test
organized by the Bank through IBPS on 22-04-2012. As per para 4(i)
of the impugned circular dated 10-05-2012, selection for promotion
would be on the basis of "on the job performance" and "group
discussion and personal interview". Only those candidates would be
called for group discussion and personal interview who have scored
minimum 60% marks in APAR for each of the two years of service
W rit P etition (C) No.3362 / 2012 P age 5 of 17
required for eligibility for promotion. Both the segments would carry
50% marks each.
5. Petitioner had applied on 14-05-2012 for consideration of
his case for promotion from Senior Management Grade Scale IV to
Scale V. Group discussions and interviews were held from 27th May to
29th May, 2012. But petitioner did not receive any call letter to appear
in the interview and group discussion. Petitioner thereafter submitted
representation before the Bank authority against non-receipt of call
letter but he did not receive any reply.
6. According to the petitioner, he could come to know from a
reliable source that his case was rejected by the Bank on the ground
that he did not secure minimum 60% marks in his APAR for each of
the two years of eligible service.
7. Following the interview held, respondents 5 to 49 were
recommended for promotion to Scale V pursuant to which they have
been promoted to Senior Management Grade Scale V. The promotees
include many who were junior to the petitioner in Scale IV.
8. Aggrieved, petitioner has filed the present writ petition
seeking the reliefs as indicated above.
9. Contention of the petitioner is that impugned circular
dated 10-05-2012 had deviated from the revised promotion policy to
the prejudice of the eligible candidates like the petitioner. New
eligibility requirements were introduced which adversely affected the
W rit P etition (C) No.3362 / 2012 P age 6 of 17
eligible candidates including the petitioner. Zone of consideration was
reduced and was not as per the prescribed ratio which led to exclusion
of the petitioner. APARs of the petitioner for the relevant years were
never communicated to him though his candidature was rejected on
the ground that he did not secure minimum 60% marks in the
relevant APARs.
10. Case was admitted for hearing on 20-07-2012.
11. On receipt of notice, respondents 1, 2 and 3 i.e. the Bank
and its authorities have filed a common affidavit. Stand taken in the
affidavit is that Government of India, Ministry of Finance had issued a
letter dated 03-05-2012 addressed to all public sector banks with
regard to promotion policy. It was stated that as a one time measure,
for promotion for the year 2012-2013, the requirement of securing
minimum 75% marks in APAR for each year under consideration
would be reduced to 60% in respect of promotion to those scales where
passing of examination conducted by IBPS on computer literacy is
mandatory. Board of Directors of the Bank had adopted the above as
part of its promotion policy on 05-05-2012 which is reflected in the
impugned circular dated 10-05-2012. It is stated that petitioner did
not meet the eligibility criteria of securing minimum 60% marks in
APAR for each of the two years under consideration and therefore he
was not called for group discussion and interview. Impugned circular
dated 10-05-2012 was issued in compliance of Government of India's
instructions dated 03-05-2012. In terms of the promotion policy of the
Bank, as the petitioner's APAR marks were not below average, which is
40, there was no necessity to communicate his APAR to the petitioner.
W rit P etition (C) No.3362 / 2012 P age 7 of 17
As per the promotion policy, if over all assessment of an officer is
found to be inadequate or below average, the officer concerned is
offered counseling. It is not obligatory on the part of the Bank to
communicate remarks in APAR to the petitioner as the marks secured
by the petitioner on the basis of gradings in his APAR were above 40%
i.e. not below average though he was not eligible for promotion having
secured less than 60% marks based on his APAR. Clauses 7.9 and 8.1
of chapter VII of the promotion policy provides that such policy would
be subject to modifications / amendments from time to time
depending upon instructions of the Government of India. As per
instruction of the Government of India dated 03-05-2012, zone of
consideration for promotion should ordinarily be three times the
number of anticipated vacancies; however, in case the required
number of officers are not available, the zone of consideration should
be atleast two times the number of likely / projected vacancies.
Applying the eligibility criteria of 60% marks in APAR, it was found
that only 112 officers had fulfilled the eligibility criteria for promotion
from Scale IV to Scale V. Thus, participation in the promotion process
was restricted to those who had secured minimum 60% marks based
on APAR for each year, having passed the computer literacy test
conducted by IBPS, which was more than twice the number of
vacancies.
12. Other respondents, though served, have not filed affidavit.
13. Petitioner has filed reply affidavit to the counter affidavit
filed by the Bank to which the Bank has also filed an affidavit. A
further affidavit has been filed by the petitioner as well.
W rit P etition (C) No.3362 / 2012 P age 8 of 17
14. Heard Mr. S. Dutta, learned Counsel for the petitioner and
Mr. M. Dutta, learned Counsel for the respondent Bank.
15. Learned Counsel for the petitioner has argued that the
impugned circular dated 10-05-2012 is illegal in as much as it has
deviated from the promotion policy of the Bank in force. It has
introduced certain eligibility criteria like having minimum 60% marks
on the basis of APAR gradings for the two years under consideration
which has adversely affected the petitioner in as much as on the
ground of securing less than 60% marks in APAR, case of the
petitioner for promotion was not considered. He submits that the 43
vacancies had fallen vacant prior to the circular dated 10-05-2012
(subsequently 2 more vacancies were added). Therefore filling up of the
said vacancies would be governed by the promotion policy existing
prior to 10-05-2012 and not by the eligibility criteria laid down in the
impugned circular. In support of this submission, learned Counsel has
placed reliance on a decision of the Apex Court in the case of Y.V.
Rangaiah and others -Vs- J. Sreenivasa Rao and others reported
in (1983) 3 SCC 284. He further submits that the Delhi High Court
has quashed the impugned circular in WP(C) No.2888/2012 (Rajinder
Kumar -Vs- Punjab National Bank and another) decided on 08-01-
2013. However, learned Counsel for the petitioner makes an
alternative argument that in case the Court is not inclined to strike
down the impugned circular, petitioner would still be entitled to re-
consideration of his case for promotion in view of the admitted factual
position. It has been admitted by the Bank that petitioner's APAR for
the two years under consideration were not communicated to him.
Such un-communicated remarks were acted upon which led to
W rit P etition (C) No.3362 / 2012 P age 9 of 17
exclusion of the petitioner from consideration. He submits that this is
against the law declared by the Supreme Court in Dev Dutt -Vs- Union
of India reported in (2008) 8 SCC 725 which has been affirmed in
subsequent decisions of the Supreme Court.
16. On the other hand, Mr. M. Dutta, learned Counsel
appearing for the Bank submits that the impugned circular dated
10-05-2012 does not suffer from any infirmity to warrant judicial
interference in exercise of the power of judicial review under article
226 of the Constitution of India. Bank is within its authority to
prescribe minimum eligibility criteria for officers to be considered for
promotion. Impugned circular is in aid of the promotion policy of the
Bank and not in derogation thereof. He submits that the impugned
circular was challenged before the Nagpur Bench of the Bombay High
Court in Writ Petition No.2844/2012 (Bank of Maharashtra Officers
Organization and others -Vs- Union of India and others), which
was dismissed. He therefore justifies the eligibility requirement of
securing minimum 60% marks based on APAR gradings for each of the
two years under consideration. Since petitioner secured less than 60%
marks, he was not eligible for consideration and therefore was not
called for interview. He also submits that as per the promotion policy,
an officer securing less than 40% marks in APAR is required to be
communicated the remarks recorded in his APAR and provided
counseling. Since petitioner secured more than 40% marks based on
his APAR gradings, his APAR remarks were not communicated to him.
Thus, the Bank acted in accordance with the promotion policy. No
case for interference is made out and writ petition should be
dismissed, he submits.
W rit P etition (C) No.3362 / 2012 P age 10 of 17
17. Submissions made by learned Counsel for the parties have
been considered.
18. Though learned Counsel for the petitioner had argued
both the issues i.e. validity of the circular dated 10-05-2012 as well as
non-communication of APAR for the years under consideration to the
petitioner, Court could discern more emphasis being laid on the
second issue, may be because the legal position governing the second
issue has been settled by the Hon'ble Supreme Court. As a matter of
fact, learned Counsel for the Bank in the course of his argument had
to concede the legal position on the second issue based on the law
enunciated by the Hon'ble Supreme Court though he vehemently
argued on the validity of the impugned circular i.e., the first issue.
19. That being the position, I am of the considered view that it
would meet the ends of justice if adjudication of the lis is confined to
the second issue or the second ground of attack of the petitioner as a
decision rendered on the second issue would be an effective resolution
of the dispute.
20. On the second ground/issue, facts are not disputed. Bank
had considered APARs of the officers for two years i.e. for the years
2010-11 and 2011-12. Only those officers in Scale IV who had secured
60% marks on the basis of gradings in APAR for each of the two years
were considered eligible and were called to participate in the group
discussion and to appear in the interview. Since petitioner had
secured less than 60% marks in each of the two years, he did not meet
the eligibility criteria and consequently he was not called for group
W rit P etition (C) No.3362 / 2012 P age 11 of 17
discussion and interview. Bank has admitted that remarks in his
APAR for the above two years were not communicated to the petitioner
because petitioner had secured more than 40% marks in each of the
two years and as per promotion policy of the Bank, it is not obligatory
on the part of the Bank to communicate the APAR remarks to those
officers who secure more than 40% marks. Petitioner has placed on
record a communication dated 25-07-2013 issued by the Executive
Director of the Bank to the petitioner under the Right to Information
Act, 2005 furnishing him the year wise marks secured by the
petitioner on the basis of his APARs for the last 10 years. As per the
said communication, petitioner has secured 59 marks for the year
2010-11 and 95 marks for the year 2011-2012.
21. In Dev Dutt (supra), the Hon'ble Supreme Court after
observing that grant of a "good" entry would be of no satisfaction to
the incumbent if it infact makes him ineligible for promotion or has an
adverse effect on his chances, held that a person getting any of the
entries from "poor" to "very good" should be communicated the entry
so that he has an opportunity of making a representation praying for
its upgradation and that such a representation should be decided
fairly and within a reasonable period by the authority concerned.
Authority concerned has been indicated to be an authority higher than
the one who gave the entry. Non-communication of entries would be
arbitrary and violative of article 14 of the Constitution. Relevant
portion of the said judgment is as under :-
"36. In the present case, we are developing the
principles of natural justice by holding that fairness
and transparency in public administration requires
W rit P etition (C) No.3362 / 2012 P age 12 of 17
that all entries (whether poor, fair, average, good or
very good) in the annual confidential report of a
public servant, whether in civil, judicial, police or any
other State service (except the military), must be
communicated to him within a reasonable period so
that he can make a representation for its
upgradation. This in our opinion is the correct legal
position even though there may be no rule/G.O.
requiring communication of the entry, or even if there
is a rule/G.O. prohibiting it, because the principle of
non-arbitrariness in State action as envisaged by
Article 14 of the Constitution in our opinion requires
such communication. Article 14 will override all rules
or government orders.
37. We further hold that when the entry is
communicated to him the public servant should have
a right to make a representation against the entry to
the authority concerned, and the authority concerned
must decide the representation in a fair manner and
within a reasonable period. We also hold that the
representation must be decided by an authority
higher than the one who gave the entry, otherwise
the likelihood is that the representation will be
summarily rejected without adequate consideration
as it would be an appeal from Caesar to Caesar. All
this would be conducive to fairness and transparency
in public administration, and would result in fairness
W rit P etition (C) No.3362 / 2012 P age 13 of 17
to public servants. The State must be a model
employer, and must act fairly towards its employees.
Only then would good governance be possible."
*******************************
"41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."
22. In Abhijit Ghosh Dastidar -Vs- Union of India and others reported in (2009) 16 SCC 146, a three judge bench of the Hon'ble Supreme Court referred to the judgment in Dev Dutt and held that when the bench mark to be considered for promotion was "very good", the entry of "good" which was recorded in the ACR of the appellant in that case and was found not communicated to him, should not have been taken into consideration for promotion to the higher grade.
23. Thereafter in Sukhdev Singh -Vs- Union of India and others reported in (2013) 9 SCC 566, a three judge bench of the Hon'ble Supreme Court declared that their Lordships were not only in complete agreement with the view in Dev Dutt but also approved the same. After referring to Abhijit Ghosh Dastidar, it was held that W rit P etition (C) No.3362 / 2012 P age 14 of 17 every entry in ACR of a public servant should be communicated to him within a reasonable period. It was held as under:-
"8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period."
24. Thus, Court is of the considered view that the procedure adopted by the Bank in excluding the petitioner from consideration for promotion to Senior Management Grade Scale V is not in conformity with the law laid down by the Apex Court as noticed above. Petitioner was considered ineligible because his APAR grading for one of the two W rit P etition (C) No.3362 / 2012 P age 15 of 17 years i.e., 2010-11 was below 60% yet the APAR remarks were not communicated to the petitioner though as per the law declared by the Apex Court all the APARs were required to be communicated to the petitioner.
25. That being the position and having regard to the law laid down by the Apex Court, the following directions are hereby issued:-
1) entries in the APAR of the petitioner for both the years 2010-11 and 2011-12 be communicated to the petitioner within a period of thirty days from the date of receipt of a certified copy of this order;
2) petitioner may submit representation before the Bank against such entries within thirty days from the date of receipt of communication of the entries in the two APARs by him;
3) such representation of the petitioner shall be considered by an authority of the Bank who is placed higher in office than the accepting authority.
Consideration of the representation shall be done fairly and objectively with an open mind by the higher authority within a period of two months from the date of receipt of the representation. Decision taken on the representation shall be communicated to the petitioner;
4) once the above exercise is completed within the period specified and if petitioner attains eligibility, Bank shall W rit P etition (C) No.3362 / 2012 P age 16 of 17 hold a review DPC to consider the case of the petitioner for promotion to Senior Management Grade Scale V alongwith the batch of respondent Nos.5 to 49 within two months of completion of the exercise covered by directions (1) to (3).
26. Writ petition is accordingly allowed to the extent indicated above but without any order as to cost.
Judge Beep! W rit P etition (C) No.3362 / 2012 P age 17 of 17