Kerala High Court
H.Rajasekharan Nair vs State Bank Of India on 11 January, 2021
Author: Anu Sivaraman
Bench: Anu Sivaraman
WP(C).No.14352 OF 2019(T)
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942
WP(C).No.14352 OF 2019(T)
PETITIONERS:
1 H.RAJASEKHARAN NAIR,
AGED 54 YEARS
S/O.HARIDASAN NAIR A.K., TC 17/17, JAGATHI,
THAICAUD P.O., THIRUVANANTHAPURAM, NOW WORKING
AS MESSENGER, STATE BANK OF INDIA,
THIRUVANANTHAPURAM TREASURY BRANCH NOW UNDER
DEPUTATION AT SBI, VANCHIYOOR BRANCH.
2 ALL INDIA STATE BANK OF INDIA EMPLOYEES'
ASSOCIATION (AIBEA),
(REGISTERED 3228/87) CENTRAL OFFICE, TKV
SMARAKAM, P.B.NO.157, PULIMOOD,
THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL
SECRETARY K.S.KRISHNA, AGED 24 YEARS,
S/O.SRI.K.SUBRAHMANIA IYER.
BY ADV. SRI.V.M.KRISHNAKUMAR
RESPONDENTS:
1 STATE BANK OF INDIA,
REPRESENTED BY ITS CHAIRMAN, CORPORATE CENTRE,
STATE BANK BHAVAN, MADAM CAMA ROAD, MUMBAI-
400021.
2 CHIEF GENERAL MANAGER (HR),
STATE BANK OF INDIA, CORPORATE CENTRE, STATE
BANK BHAVAN, MADAM CAMA ROAD, MUMBAI- 400021.
3 ADDL.R3. BABU.K.M
CLERICAL STAFF, STATE BANK OF INDIA, CALICUT
MEDICAL COLLEGE BRANCH, KOCHIKKODE,
WP(C).No.14352 OF 2019(T)
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4 ADDL.R4.GANGADHARAN.M
CLERICAL STAFF, STATE BANK OF INDIA, HOSDURG
BRANCH, KASARGOD.
5 ADDL.R5.HARIDASAN.K
CLERICAL STAFF, STATE BANK OF INDIA,
KOPPAM, PALAKKAD PIN-679 307
6 ADDL.R6.HASLIN.P.J
CLERICAL STAFF, STATE BANK OF INDIA,
PERUMANOOR BRANCH, ERNAKULAM, PIN-682 015.
7 ADDL.R7. ISSAIC.O.J
CLERICAL STAFF, STATE BANK OF INDIA,
VELLATHUVAL BRANCH, IDUKKI. PIN-685563.
8 ADDL.R8.JAMES.P.J
CLERICAL STAFF, STATE BANK OF INDIA,
PALAI TOWN, KOTTAYAM PIN-695 575.
9 ADDL.R9.JANARDJANAN.M.P
CLERICAL STAFF, STATE BANK OF INDIA, MANAKARA
BRANCH, PALAKKAD, PIN-678 613
10 ADDL.R10.JIJIKUMAR.K.A
CLERICAL STAFF, STATE BANK OF INDIA, MANAKARA
BRANCH, PALAKKAD, PIN-678 613
11 ADDL.R11.JOSEPH CHACKO
CLERICAL STAFF, STATE BANK OF INDIA, SME
THRISSUR BRANCH, THRISSUR, PIN- 680 001
12 ADDL.R12. LAIJU.P.P
CLERICAL STAFF, STATE BANK OF INDIA NORTH
PARAVUR BRANCH, MALIEKKAL SHOPPING COMPLE,
NORTH PARAVUR, ERNAKULAM, PIN-683 513.
13 ADDL.R13.MADHAVAN K.S
CLERICAL STAFF, STATE BANK OF INDIA,
SREEKRISHNAPURAM BRANCH, SREEKRISHNAPURAM,
PALAKKAD, PIN-679 513.
WP(C).No.14352 OF 2019(T)
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14 ADDL.R14.MADHU.K
CLERICAL STAFF, STATE BANK OF INDIA, PALLICKAL
BRANCH, KILIMANOOR, THIRUVANANTHAPURAM, PIN-695
604.
15 ADDL.R15. MURALI.S
CLERICAL STAFF, STATE BANK OF INDIA, KAYAMKULAM
BRANCH, KAYAMKULAM, ALAPPUZHA PIN-690 502.
16 ADDL.R16.RADHAKRISHNAN.P.P
CLERICAL STAFF, STATE BANK OF INDIA KOTTAYAM
TOWN BRANCH, K.K.ROAD, KOTTAYAM 686 002.
17 ADDL.R17. RAHASEKHARAN.P.
CLERICAL STAFF, STATE BANK OF INDIA M.C.ROAD
BRANCH, ETTUMANOOR, NEAR KSRTC BUS STAND,
KOTTAYAM, PIN-686 631.
18 ADDL.R1.RAMESH.M.B
CLERICAL STAFF, STATE BANK OF INDIA, ANGAMALY
BRANCH, MAIN ROAD, ANGAMALY, ERNAKULAM DISTRICT
683 572.
19 ADDL.R19.ROY.C.J
CLERICAL STAFF, STATE BANK OF INDIA, PIRAVOM
TOWN BRANCH, OLD MARKET ROAD, PIRAVOM,
ERNAKULAM DISTRICT PIN-686 664.
20 ADDL.R20. SABU.M.B
CLERICAL STAFF, STATE BANK OF INDIA
VADAKKANCHERY BRANCH, VADAKKANCHERY, PALAKKAD
SIT.PIN 678 683
21 ADDL.R21. SAJEEVAN.K
CLERICAL STAFF, STATE BANK OF INDIA, PAYYANNUR
BRANCH, PAYYANUR, KANNUR, PIN-670 307.
22 ADDL.R22. SATHYANARAYANAN.K
CLERICAL STAFF, STATE BANK OF INDIA KERALASSERY
BRANCH, KERALASSERY, PALAKKAD, PIN-678 641.
23 ADDL.R23.SHIBU PAUL
CLERICAL STAFF, STATE BANK OF INDIA,
THIRUVARPPU BRANCH, THIRUVARPU, KOTTAYAM. PIN-
686 003.
WP(C).No.14352 OF 2019(T)
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24 ADDL.R24. SOMAN.A.V
CLERICAL STAFF, STATE BANK OF INDIA, KOOTTAR
BRANCH, KOOTTAR, IDUKKI, PIN-685 552.
25 ADDL.R25.SUNILKUMAR.C.K
CLERICAL STAFF, STATE BANK OF INDIA PBB
KOTTAYAM BRANCH, MARIYATHURUTH, KOTTAYAM, PIN-
686 017.
26 ADDL.R26. SURESH.K.T
CLERICAL STAFF, STATE BANK OF INDIA
MOOVATTUPUZHA BRANCH, MOOVATTUPUZHA, ERNAKULAM
DIST.686 661.
27 ADDL.R27. SURESH KUMAR.C
CLERICAL STAFF, STATE BANK OF INDIA, ALUVA
CATHOLIC BRANCH, RAILWAY STATION ROAD, ALUVA,
ERNAKULAM PIN-683 101.
28 ADDL.R28.SURESH.V.K
CLERICAL STAFF, STATE BANK OF INDIA, PALAI
TOWN, KOTTAYAM PIN-696 575.
29 ADDL.R29. THOMAS P.JOSE,
CLERICAL STAFF, STATE BANK OF INDIA ANGAMALY
TOWN BRANCH, MAIN ROAD, ANGAMALY, ERNAKULAM
DISTRICT, 683 572.
30 ADDL.R30.UNNIKRISHNAN.V.K
CLERICAL STAFF, STATE BANK OF INDIA, ANGAMALY
TOWN BRANCH, MAIN ROAD, ANGAMALY, ERNAKULAM
DISTRICT, PIN-683572.
31 ADDL.R31. VIJAYAKUMAR. T
CLERICAL STAFF, STATE BANK OF INDIA VARKALA
MAIDANAM BRANCH, VARKALA, THIRUVANANTHAPURAM
695 141.
ADDL.R3 TO R31 ARE IMPLEADED AS PER ORDER DATED
18.12.19 IN I.A.NO.7/19 IN W.P.(C) 14352/19(T)
R1-2 BY SRI.GEORGE THOMAS(MEVADA), SC, SBI
R1-2 BY SRI.AMAL GEORGE, SC, SBI
WP(C).No.14352 OF 2019(T)
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R3-17, R19-22, R25-28, R30-31 BY ADV.
SRI.M.SASINDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-11-2020, THE COURT ON 11-01-2021 DELIVERED THE FOLLOWING:
WP(C).No.14352 OF 2019(T)
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JUDGMENT
Dated this the 11th day of January 2021
1. This writ petition is filed seeking the following prayers:-
i) Call for records leading to P3 and P4 and issue a writ in the nature of certiorari quashing Ext.P3 and P4.
ii) Issue a writ in the nature of mandamus commanding the respondents to effect promotion from the post of subordinate staff to the post of clerical cadre on the basis of Ext.P1 and P2 only and not resort to the procedure mentioned in Ext.P3 and P4.
ii)a. Call for records leading to Exhibit P9 and issue a writ in the nature of certiorari quashing Exhibit P9;
ii)b. Declare that promotions granted to Additional Respondents 3 to 28 pursuant to Exhibit P9 select list are illegal and non-est.
2. Heard the learned Senior counsel appearing for the petitioners, the learned Senior counsel appearing for the Bank and the learned counsel appearing for the respondents.
3. The 1st petitioner is a subordinate staff working as messenger in the State Bank of India, Thiruvananthapuram Treasury branch, now under deputation at SBI, Vanchiyoor Branch. The 2nd petitioner is the Association of the Employees of the State Bank of India. Petitioners are aggrieved by the violation of WP(C).No.14352 OF 2019(T) 7 staff regulation regarding promotion from subordinate staff to clerical cadre in the State Bank of India. It is contended that as per the staff regulation, which is the result of a bipartite settlement, the promotional avenues of different employees of State Bank of India was finalized. There are two channels of promotion. One is merit channel and the other is normal seniority channel. The merit channel is provided for promotion of subordinate staff having matriculation and equivalent qualification and normal seniority channel is for promotion of subordinate staff having less than matriculation as qualification. For the purpose of merit channel promotion, the employees should be full time employees with five year service as on the 1st April of the promotion year. The service put in as permanent part time employee prior to full time appointment will be reckoned proportionately by notionally converting part time service into full time service, in case such full time employees has less than five years of service as on 1 st April of the promotion year. The 1st petitioner is having the eligibility and qualification for promotion to the post of clerical staff in the merit channel promotion.
WP(C).No.14352 OF 2019(T) 8
4. Relying on Ext.P1 staff regulation, it is contended that the subordinate staff with matriculation will be entitled for promotion under the merit channel only and will be designated as Assistant (ACCTS) on promotion. It is also stipulated that the subordinate staff without matriculation will be eligible for promotion under the normal channel only and will be designated as Assistant (cash) on promotion. As such, any candidate will be eligible only for one channel of promotion depending upon his qualification. It is submitted that normally, the subordinate staff having matriculation on promotion is given the designation of Assistant (CS & S) and is eligible for further promotion to the post of Senior Assistant, Clerk, Senior Clerk etc and also out of cadre promotion to officer cadre. The subordinate staff who do not have matriculation and are promoted in the normal seniority channel will be posted as Record Keeper, Godown Keeper, Bill Collector etc. and there is no promotion avenue.
5. While so, by Ext.P3, the 2nd respondent issued a communication providing a special channel promotion for subordinate staff to clerical cadre for the financial year 2019- WP(C).No.14352 OF 2019(T) 9 2020. 390 vacancies in the clerical cadre were sought to be filled up by this exercise on the basis of a written test and interview. The channel was open to all subordinate staff having 8 years of service. The promoted employees would be governed by the service conditions of record keepers. They may be utilized as 'grahak mitra' in bigger branches. The petitioner filed Ext.P5 objection and filed the Writ Petition.
6. A counter affidavit was filed contending that the special channel promotion did not prejudice the petitioner in any manner, since all matriculates and non-matriculates with 8 years service could appear and the promotion prospects of matriculates was unaffected. It was further contented that the special channel would be operated for the financial year 2019- 2020 alone. Thereafter, Ext.P11 proceedings were issued extending the special channel promotions for the financial year 2020-21 as well. The writ petition was amended and the persons who secured promotion pursuant to Ext.P3 were impleaded and Ext.P9 was challenged.
WP(C).No.14352 OF 2019(T) 10
7. The substantial grievance of the petitioner is that by Ext.P2 circular, a policy decision was taken not to conduct promotion exercise to the post of Record Keeper, Godown Keeper, Bill collector etc since these posts are no longer required. Since Ext.P2 is the circular that is in force even now, it is contended that the decisions impugned are against the clear promotion policy of the bank. It is argued that by Ext.P3, the number of clerical vacancies proposed to be filled up by promotion from subordinate staff in each circle concerned is mentioned. There are total number of 390 vacancies to be filled up by promotion from subordinate staff out of which 26 is from Thiruvananthapuram circle. It is stated that though the 1 st respondent is expected to conduct the regular promotion process for giving promotion from the post of subordinate staff to clerical cadre, the said exercise was not conducted for long years. Going by the past experience, the next exercise of promotion from the subordinate staff will be after years together. By that time, the subordinate staff with matriculation, who do not have required length of service now, will be age barred. This is the case of the 1 st petitioner as well since after 55 years there is an age bar for being considered WP(C).No.14352 OF 2019(T) 11 for promotion. Thus, this is the only opportunity for the 1 st petitioner to get promotion to the clerical cadre, and that too, in the merit channel. It is submitted that the promotion exercise from the clerical cadre to officer cadre is being conducted every year without fail. Ext.P12 HR hand book updated upto June 2020, which shows that Ext.P1 promotion policy remains unchanged, is also produced by the petitioners. Ext.P13 memorandum of settlement is also produced.
8. It is contended that persons like 1st petitioner are entitled to be considered for promotion to clerical cadre and assigned the post of Assistant (ACCTS) and entitled to further promotion depending upon seniority and qualification. However, as can be seen from clause 2 of Ext.P3, while giving a promotion from subordinate staff, the service condition of Record Keeper will only be given to them. This would result in denial of further promotion to the persons among the subordinate staff having matriculation. It is further submitted that the purpose of providing two channels of promotion for matriculates and non matriculates is to accommodate non matriculates also as promotees to clerical cadre. By clubbing together both WP(C).No.14352 OF 2019(T) 12 matriculates and non matriculates, the chances of non matriculates getting promotion through competitive selection process will be tampered. It amounts to treating unequals equally.
9. The learned Senior counsel for the petitioner relies on a decision of the Apex Court in U.P.C.U.E.F Ltd. Vs Cane Commissioner and R.C.C.S and others (2008 KHC 4581) to contend that no employer can change the service condition applicable to the workmen as is specified in the Third Schedule without giving due notice as provided by law. Reliance is also placed on Section 9(A) of the Industrial Disputes Act, 1947 which reads as follows:-
"9A. Notice of change.-No, employer, who proposes to effect any change in conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,-
(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice:
Provided that no notice shall be required for effecting any such change-
WP(C).No.14352 OF 2019(T) 13
(a) where the change is effected in pursuance of any "[settlement or award]; or
(b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply."
It is further submitted that the professed policy of the Bank with regard to promotions has undergone no change and that the impugned decisions are clearly against the promotion policy and the staff regulations. Relying on the decision of the Apex Court in Bharat Sanchar Nigam Ltd. & another vs Union of India (2011 KHC 2932), it is contended that all vacancies which are in existence or on the date of Ext.P3 are to be filled up in accordance with the promotion policy and regulations before the special channel was introduced.
10.The learned Senior counsel for the respondents contend that the 2nd petitioner union represents only about 1% of employees of the bank and has no locus standi to contend that they WP(C).No.14352 OF 2019(T) 14 represent the employees. It is contended that policy decisions regarding promotion are taken after due consultation with recognized unions and in the exigencies of administration and commercial interest and such decisions are not open to challenge in judicial review. It is submitted that Exts.P1, P2 and P12 relate to promotions to clerical cadre while Exts. P3 and P11 are relating to special channel promotions of grahak mitra which is a new category found necessary in the current situation. It is stated that the 1st petitioner being a graduate, can aspire for normal promotion to the clerical cadre and posting as Assistant (Accounts) in terms of Exts. P1 and P2. It is further contended that contentions regarding violations of provisions of bipartite agreements cannot be considered before this Court since Section 10 (2) of the ID Act & Chapter III & IV thereof provide adequate remedy in case of such violations.
11.The decisions in The Premier Automobiles Ltd vs Kamlekar Shantaram Wadke and others (2004 (4) SCC
268), Lt. Governor, NCT and others vs. Ved Prakash alias vedu (2006(5)SCC 228), Transport and Dock Workers WP(C).No.14352 OF 2019(T) 15 Union and others vs. Mumbai Port Trust and another (2011 (2) SCC 575). A judgment in W.P.(C) 10596/2018 of the Delhi H.C is also relied on.
12.The 6th respondent has also filed a counter affidavit contending that the post of Grahak Mithra was created after the foundation of the promotion policy and is therefore not covered by Exts.P1 or P2. It is contended that the creation of new posts and providing for a method of appointment to those posts are the prerogative of the bank. It is further contended that the impugned decisions were taken after due consultation with the employees and in order to expedite promotions.
13.I have considered the contentions advanced and perused the documents placed on record. Ext.P1, which is produced and relied on as the promotion policy is an extract showing the policy for promotion of subordinate staff to clerical cadre. In the first counter affidavit filed by the respondent it is contended as follows:-
" Regarding the averments in paras 6 and 7 of the writ petition I submit as follows. While reviewing the implementation of exhibit Pi Policy, it was observed that most of the subordinate WP(C).No.14352 OF 2019(T) 16 staff who got promoted into clerical cadre were not adept in working efficiently in the computerised environments (i.e. in CBS-Core Banking Solution). As the regular promotion exercise (i.e. merit channel & normal cum seniority channel) have not yield the desired results, the respondent Bank decided not to conduct any promotion exercise during the promotion years 201718 and 2018-19. Hence the respondent Bank has come up with the present "Special channel of promotion" for the promotion year 2019-2020 as a one time exercise. I respectfully submit that the existing Merit and Normal channels have not been dispensed with and a decision on reopening these channels may be taken in due course after a review of the promotion exercise of this year and the future requirements of the Bank. It is also submitted that the Bank as a matter of policy has decided to complete all promotion exercise in a time bound manner to enable the Bank to have effective utilisation of its human resources and to minimize the discomfort to the officers and employees on account of transfers. "
14.It is further contended that the promotion policy is subject to change as per requirement and that Exts.P3 and P11 decisions are taken after due consultation with recognized Union and that the petitioners cannot contend that there shall be no change in the promotion policy.
WP(C).No.14352 OF 2019(T) 17
15.In the facts and circumstances of the instant case, I am of the opinion that the question which requires to be considered is whether there is an infringement of the 1 st petitioner's rights to promotion which requires interference by this Court. The requirements of staff in the bank and the need to fill up posts are matters for the employer bank to decide on. The petitioners cannot contend that Exts.P1 & P2 are policy decisions which cannot be changed under any circumstances. If it is the contention of the petitioners that any bipartite agreement stands violated by Exts.P3 and P11, then the remedy is undoubtedly under the ID Act before the appropriate forum. The respondents contend that a special channel of promotion has been provided to fill up the newly created posts of Grahak Mithra after due consultation with recognized unions. Creation of posts, methods of promotion and necessity of filling up of posts etc. are matters which are normally outside the purview of judicial scrutiny. Unless it can be established that any constitutional or legal right of the petitioners are violated, the challenge against a policy decision taken by the bank to create posts or to provide a method of appointment thereto cannot succeed before this Court. WP(C).No.14352 OF 2019(T) 18
16.In the instance case, the contention of the petitioners is that Exts.P3 and P4 affect the petitioners' chances of promotion under Exts.P1 and P2 detrimentally. However, it is contended by the respondents that no change is being brought about to Ext.P1 and the 1st petitioner will be eligible for promotion in accordance with his turn. In case no steps are taken to effect the promotions in pursuance to the staff regulations and the promotion policy, the employees of the Bank will have the right to seek promotions in accordance with law.
Having considered the contentions, I find that the prayers sought for cannot be granted. The writ petition, therefore, fails and the same is accordingly dismissed.
Sd/-
Anu Sivaraman, Judge sj/bng APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE POLICY FOR PROMOTION TO SUBORDINATE STAFF TO CLEAICAL CADRE IN STATE BANK OF INDIA.
EXHIBIT P2 COPY OF THE CIRCULAR DATED 03/03/2016 WITH RELEVANT CHAPTER.
EXHIBIT P3 COPY OF THE LETTER DATED 08/04/2019 OF THE CHIEF MANAGER, STATE BANK OF INDIA.
EXHIBIT P4 COPY OF THE LETTER DATED 09/05/2019 ISSUED BY THE DEPUTY GENERAL MANGER.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION FILED BY THE 2ND PETITIONER TO THE DEPUTY MANAGING DIRECTOR (HR)DATED16.4.2019 EXHIBIT P6 TRUE COPY OF THE EMAIL ISSUED TO THE ADMINISTRATIVE OFFICE AT THRISSUR.
EXHIBIT P7 TRUE COPY OF THE EMAIL ISSUED TO THE ADMINISTRATIVE OFFICE AT KOTTAYAM.
EXHIBIT P8 TRUE COPY OF THE LIST HAVING 39 PERSONS WHO HAVE TO BE PROMOTED FROM SUBORDINATE STAFF TO CLERICAL CADRE.
EXHIBIT P9 TRUE COPY OF THE LIST HAVING 41 PERSONS WHO HAVE TO BE PROMOTED FROM SUBORDINATE STAFF TO CLERICAL CADRE.
EXHIBIT P10 TRUE COPY OF E-CIRCULAR ISSUED BY THE STATE BANK OF INDIA, P & HRD DATED 03.09.2010.
EXHIBIT P11 TRUE COPY OF THE LETTER OF THE CHIEF GENERAL MANAGER, HR/IR/PKM/823 DATED 29.09.2020.
EXHIBIT P12 TRUE COPY OF RELEVANT PAGES OF HR HANDBOOK OF STATE BANK OF INDIA UPDATED AS ON 30/06/2020.
EXHIBIT P13 TRUE COPY OF THE MEMORANDUM OF SETTLEMENT DATED 16/04/2008 BETEWEEN STATE BANK OF INDIA AND ALL INDIA STATE BANK OF INDIA STAFF FEDERATION.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) TRUE PHOTOCOPY OF THE EMAIL DATED
17.6.2019, ADDRESSED TO THE CHIEF MANAGER (HR) ADMINISTRATIVE OFFICE TRICHUR.
EXHIBIT R1(B) TRUE PHOTOCOPY OF THE LIST OF 64 PERSONS. EXHIBIT R1(C) TRUE PHOTOCOPY OF THE LIST OF 9 PERSONS.