Madhya Pradesh High Court
Raghvendra Prasad Gautam vs Union Bank Of India on 17 January, 2012
1 W.P No.14088/2006(S)
HIGH COURT OF MADHYA PRADESH AT JABALPUR
WRIT PETITION NO.14088/2006 (S)
PETITIONER : RAGHVENDRA PRASAD GAUTAM
Vs.
RESPONDENTS : UNION BANK OF INDIA
AND ANOTHER.
Present : Hon'ble Shri Justice R.S. Jha.
Petitioner : In person.
For respondents : Shri S. K. Rao, Sr. Counsel with
Shri V. K. Pandey, Advocate.
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ORDER
(17/01/2012) The petitioner has filed this petition assailing the promotion policy of the respondent Bank on the ground that it is unconstitutional as well as contrary to the provisions of the Official Languages Act, 1963; the Official Language Amendment Act, 1968 and the Rules framed thereunder as it places the petitioner, who is not proficient in English, at a disadvantage.
2. Before I advert to the issues raised by the petitioner in the petition it is necessary to take into account the history of the present litigation as several material facts 2 W.P No.14088/2006(S) have occurred prior to the filing of the present petition, which are as follows.
3. The the petitioner was working as a Head Clerk in the establishment of the respondent Bank. He applied for selection and promotion in the Officers Cadre i.e. Grade Scale-I in the year 1993 in the channel for All India Services provided by the respondents in the promotion policy dated 23.10.1992. As per the promotion policy the petitioner was required to undertake a written test in four subjects i.e. English, Law & Practice of Banking, Commercial Law/Accountancy and Practical Banking. All the papers were of maximum 50 marks and the minimum qualifying marks in each of the subjects was 35% with a stipulation that the marks obtained in English would not be treated for ranking purpose. In the said examination, while the petitioner passed in three subjects i.e. Law & Practice of Banking, Commercial Law/Accountancy and Practical Banking, he obtained only 17 marks in English i.e below 35% and was accordingly not selected, being aggrieved by which he had filed W.P No.2529/1996 alleging that he had been put at a disadvantage on account of the English 3 W.P No.14088/2006(S) language paper and non-inclusion of Hindi in the said examination as an optional paper.
The petitioner also assailed his non-selection on the ground that persons who had obtained lesser marks than him had been called for interview while the claim of the petitioner, who had scored more marks, had been ignored for the sole reason of his disqualification/non selection in obtaining minimum qualifying marks in the English language paper. The petitioner also assailed the promotion policy which prescribed minimum qualifying marks in English language as violative of the provisions of Articles 343 and 344 of the Constitution of India and against the spirit of the provisions of the Official Languages Act, 1963. The petitioner also alleged that as the English language paper in the All India Services Examination in other nationalized banks was not compulsory whereas the same had been made compulsory by the respondent Bank, its action amounted to discrimination and was violative of the provisions of Article 14 of the Constitution of India.
The aforesaid writ petition, filed by the petitioner, was dismissed by this Court by order dated 4.8.1998 (reported in 1999(1) MPLJ 42) and while doing so the 4 W.P No.14088/2006(S) Division Bench of this Court held in paras-7, 8 & 10 as follows:-
"7. ....In view of the aforesaid discussion it is graphically clear in absence of any constitutional prohibition, the promotion policy laying down minimum qualifying marks in English does not cause any violence to any of the constitutional provisions. Hence, the first submission of the learned counsel for the petitioner has no substance.
8. .....It is to be noted here that the aforesaid section was substituted by the Official Language (Amendment) Act, 1968 (1 or 1968). Mr. Tankha has placed emphasis on sub section (4) which envisages that persons serving in connection with the affairs of the Union and having proficiency either in Hindi or in English language, are not placed at a disadvantage on the ground that they do not have proficiency in both the languages. Learned counsel for the petitioner would like us to interpret the aforesaid provision to the effect that by providing minimum pass mark in English language and making it compulsory the respondent has put the likes of the petitioner at a disadvantage, and hence the same runs contrary to the aforesaid central legislation. Scanning and anatomy of the aforesaid provision and on a close scrutiny of the scheme of the Act, we do not find that the statute supports the 5 W.P No.14088/2006(S) proposition canvassed by the learned counsel for the petitioner. We are reminded of the saying of Plowden:
"Each law consists of two parts viz, of body and soul; the letter of the law is the body of the law and the sense and reason of the law is the soul of the law."
Bestowing our anxious consideration, we are afraid, we are not able to pursuade ourselves to accept the proposition propounded by the learned counsel for the petitioner for the simple reason nothing like this, as canvassed by him, flows from the aforesaid provision. The aforesaid provision does not prohibit English to be regarded as a compulsory subject in any Departmental Examination or for that matter in any examination. In the result, the submission of Mr. Tankha though attractive is unacceptable.
10. ....... Learned counsel has also taken pain to canvass that when the policy has been formulated by the Department of Official Languages and this being in consonance with the provisions of the Constitution, the Promotion Policy framed by the respondent-Bank is violative of the Constitutional mandate. On a perusal of the aforesaid Programme, we do not find anything prohibiting the English to be retained as a subject in any examination. 6 W.P No.14088/2006(S)
Therefore, we do not find provisions laying down qualifying marks in the departmental examination anyway subversive of the constitutional provision.
On a perusal of the Promotion Policy, we find that it has been brought into existence by way of settlement. A settlement has been reached by the majority of the Employees' Union with the Management. As per provision of section 18 of the Industrial Disputes Act it is binding on both the parties unless revoked in accordance with law.
Indubitably, the settlement has not been revoked. The petitioner is bound by it. As the settlement is not violative of any of the provision of the Constitution of the Official Languages Act or for that matter, any public policy, we are unable to release the petitioner from the said settlement."
It is, therefore, clear that all the issues raised by the petitioner in the aforesaid petition were duly considered and rejected and, accordingly, the petition filed by him was dismissed.
4. Thereafter the petitioner filed another writ petition before this Court which was registered as W.P No.3771/2005 again assailing the promotion policy formulated by the respondent on 23.10.1992 providing for obtaining minimum qualifying marks of 35% in 7 W.P No.14088/2006(S) English language as violative of the provisions of the Official Languages Act, 1963. However, the said petition was also dismissed by the Division Bench of this Court extensively quoting and relying upon the previous decision of this Court rendered in 1999(1) MPLJ 42 (supra). The review petition, MCC No.2165/2005, filed by the petitioner was also dismissed by order dated 19.9.2006 specifically stating therein that the promotion policy which provides for obtainment minimum qualifying marks of 35% in English language has been held to be constitutionally valid in W.P No.3771/2005 (1999(1) MPLJ
42) and it has also been held that it does not violate the Official Languages Act, 1963. However, while dismissing the aforesaid review petition it was observed that the petitioner, if aggrieved with regard to his non-promotion, can assail it by an independent proceeding if so advised within the parameters of law.
5. After dismissal of the aforesaid two writ petitions, the petitioner has filed the present petition assailing the aforesaid policy of the respondent Bank alleging that the aforesaid policy is violative of the provisions of the Constitution of India as well as the Official Languages Act, 1963 as amended by the Official Languages 8 W.P No.14088/2006(S) (Amendment) Act, 1968. The petitioner, by way of a writ of mandamus, has also sought that the selection made by the respondents pursuant to the written test held in the year 2005 may be set aside and they be directed to reconstitute the merit list without taking into consideration the marks obtained by the petitioner in English language paper and conduct the selection process on the basis of the revised list and to grant all consequential benefits to the petitioner since 1995.
6. When this matter came up for hearing on 8.5.2008 a Division Bench of this Court, after hearing the petitioner and the learned Senior counsel for the respondents, made the following observations and referred the following question for decision of the Full Bench:-
"After having heard the petitioner in person and Mr. Rao, learned Senior Counsel appearing for the respondents, prima-facie we find a lot of force in the submission of the petitioner and we are not quite sure whether the opinion of the Division Bench in the two cases of the petitioner, referred to above, is correct in law.
We cannot, of course, reopen the
question of promotion of the petitioner
pursuant to the earlier circular dated
9 W.P No.14088/2006(S)
23.10.1992 after two Division Benches of this Court had turned down the contention of the petitioner twice in the two judgments referred to above, but since the question has again arises because of a fresh circular issued on 4th August, 2006, giving rise to a fresh cause of action for the petitioner to move this Court under Article 226 of the Constitution, we refer the following question of law to the Full Bench:
"Whether the circular dated 4th August, 2006 of the respondent Bank in so far as it insists on 35% pass marks in English to qualify for promotion in the case persons like the petitioner who are proficient in Hindi, is ultra-vires sub-section (4) of Section 3 of the 1963 Act ?"
7. The Full Bench, after considering the matter at length, by order dated 8.9.2010 upheld the circular dated 4.8.2006 as far as it insisted on 35% minimum qualifying marks in English after recording a categorical finding to the effect that it was not violative of the provisions of Official Languages Act, 1963, in the following terms:-
"34. Having thus considered we are of the opinion that the stipulation as contained in the Promotion Policy dated 10.10.1992 for clerical staff for promotion to officer cadre, 10 W.P No.14088/2006(S) circulated vide staff circular No.3913 dated 23.10.1992, and as amended from time to time, laying down the criteria of obtaining minimum 35% marks in English in written examination for being qualified to be placed on the provisional select list, does not violate the mandate of sub-section (4) of section 3 of the Official Languages Act, 1963.
35. We accordingly answer the question of law referred to us as to that the circular dated 4th August, 2006 of the Respondent Bank in so far as it insists on 35% pass marks in English to qualify for promotion in the case of persons like the petitioner who are proficient in Hindi, is not untra-vires sub- section (4) of Section 3 of the 1963 Act."
8. After decision of the Full Bench, this petition came up for hearing again on 7.3.2011 and was dismissed in view of the decision of the Full Bench. The petitioner, being aggrieved, filed an application for review which has been allowed by order dated 14.9.2011 and that is how this matter has now come up for hearing before me.
9. It is pertinent to note that in the meanwhile the petitioner had also filed another writ petition which was registered as W.P No.15371/2006(S) wherein he again called in question his non-selection to the Officer Cadre 11 W.P No.14088/2006(S) through All India Service Promotion Examination held in the year 1993 and the result thereof which was declared in the year 1995. The said petition also suffered dismissal by order dated 16.2.2010 in view of and relying upon the Division Bench decision of this Court in the previous petition filed by the petitioner reported in 1999(1) MPLJ 42 (supra).
10. It is submitted by the petitioner, who has appeared in person, that even after decision of the Full Bench answering the question of law referred to it against the petitioner, certain issues which were raised are still alive for decision before this Court. It is submitted that while the petitioner, at this stage, does not raise any challenge to the prescription of 35% minimum qualifying marks in the English language paper, he asserts that the promotion policy formulated by the respondents results in placing the petitioner to a disadvantage simply on account of the fact that he is not proficient in English which is contrary to the spirit of the provisions of the Official Languages Act, 1963. It is submitted that Section 3 of the Official Languages Act, 1963 specifically provides that the respondents must ensure that a person having proficiency either in Hindi or English language 12 W.P No.14088/2006(S) may function effectively and that they are not placed at a disadvantage on the ground that they do not have proficiency in both the languages. It is submitted that inspite of the aforesaid statutory provisions, the policy of the respondents places the petitioner at a disadvantage only on account of the fact that he is not proficient in English and, therefore, violates the provisions of the Official Languages Act, 1963.
11. The petitioner has confined his challenge to the policy only on the aforesaid ground and on no other grounds.
12. Shri Rao, the learned Senior Counsel appearing for the respondents, per contra submits that in view of the specific stipulation in the order of reference as well as the decision rendered by the Division Bench of this Court in the previous petition filed by the petitioner specifically in view of the decision rendered in 1999(1) MPLJ 42 (supra), the issue raised by the petitioner does not survive for adjudication and the present petition being misconceived deserves to be dismissed.
13. I have heard the petitioner in person and the learned Senior Counsel for the respondents at length. 13 W.P No.14088/2006(S) Apparently, the issue as to whether the prescription of minimum qualifying marks in English was unconstitutional; whether the promotion policy was violative of the constitutional provisions; whether the promotion policy was violative of the provisions of the Official Languages Act, 1963; and as to whether the policy places persons who were proficient in Hindi and not proficient in English at a disadvantage, were all considered and decided in detail against the petitioner by this Court in the first petition filed by the petitioner i.e. W.P No.2529/1996 decided on 4.8.1998 reported in 1999(1) MPLJ 42 (supra). Similar issues raised by the petitioner in the second petition were also dismissed by this Court by order dated 20.9.2005 passed in W.P No.3771/2005 and the MCC, filed by the petitioner, for review was also dismissed by this Court.
14. Admittedly, the petitioner has only appeared twice in the All India Services Examination as per the promotion policy, once in the year 1993 and the second time in the year 1996, and on both counts he was not promoted as he did not obtain the minimum qualifying marks in the subject of English. It is stated by the learned Senior Counsel for the respondents and admitted 14 W.P No.14088/2006(S) by the petitioner that subsequently the petitioner has been promoted as an Officer in the Junior Management Grade/Scale-I (General Banking) having cleared the State Services Examination by order dated 11.7.2007. It is, therefore, undisputed and manifestly clear that the petitioner has not participated or appeared in the All India Services Examination pursuant to or after issuance of the notification dated 4.8.2006.
15. From a perusal of the order passed by the Division Bench on 8.5.2008, in the present petition referring the matter to the Full Bench, it is manifestly clear that the Division Bench has itself clearly stated that the question of promotion of the petitioner pursuant to the earlier circular dated 23.10.1992 cannot be reopened after two Division Bench decisions of this Court turning down the contention of the petitioner twice in its two judgments. However, while stating so, the Division Bench has gone on to state that the question has arisen again because of a fresh circular dated 4.8.2006 giving rise to a fresh cause of action to the petitioner and on that count the matter was referred to the Full Bench to decide as to whether the circular dated 4.8.2006 of the respondent Bank which insisted on obtaining minimum 35% 15 W.P No.14088/2006(S) qualifying marks in English to qualify for promotion in the case of persons like the petitioner who are proficient in Hindi is ultra vires the provisions of Sub section 4 of Section 3 of the Official Languages Act, 1963 and the Full Bench by its decision dated 8.9.2010, while answering the reference, has held that the aforesaid circular of the respondents dated 4.8.2006 prescribing minimum qualifying marks in English even for persons like the petitioner who are proficient in Hindi is not violative of the provisions of the Official Languages Act, 1963.
16. In view of the aforesaid facts and circumstances, it is apparent that the previous Division Bench decisions of this Court were not referred to the Full Bench for reconsideration nor have they been reopened and that, in the aforesaid two Division Bench decisions, this Court has already negatived all the contentions of the petitioner including the contention as to whether the promotion policy which requires the petitioner to pass in the subject of English results in imposing a disadvantage upon persons like the petitioner who are proficient in Hindi. It is also clear that though the issue as to violation of the provisions of the Official Languages Act, 1963 by the circular dated 4.8.2006 was referred to 16 W.P No.14088/2006(S) the Full Bench, the Full Bench has again affirmed and upheld the circular of the respondent Bank dated 4.8.2006 providing for obtaining minimum 35% qualifying marks in English even for persons like the petitioner who are proficient in Hindi.
17. In view of the aforesaid, it is clear that the issue raised by the petitioner already stands concluded against him by the Division Bench decisions of this Court rendered in W.P No.2529/1996 decided on 4.8.1998 (reported in 1999(1) MPLJ 42) and W.P No.3771/2005 decided on 20.9.2005 and the issue as to whether the policy of the respondent Bank is violative of the provisions of the Official Languages Act, 1963 also stands decided against the petitioner by the Full Bench of this Court on 8.9.2010.
18. For the foregoing reasons, the issue sought to be raised by the petitioner again in the present petition cannot be permitted to be raised by him as the same already stands concluded by the aforesaid decisions, moreso, as I am respectfully bound by the decision of the Full Bench as well as the Division Bench. 17 W.P No.14088/2006(S)
19. Accordingly, the petition, filed by the petitioner, stands dismissed in view of the decisions rendered by the Division Bench of this Court in W.P No.2529/1996 decided on 4.8.1998 (reported in 1999(1) MPLJ 42) and W.P No.3771/2005 decided on 20.9.2005 and the Full Bench decision of this Court in the present petition dated 8.9.2010.
20. In the facts and circumstances of the case there shall be no order as to the costs.
( R. S. JHA ) JUDGE 17/01/2012 mms/-