Karnataka High Court
Dattatreya N. Reddy S/O Late Nagappa vs The Chairman on 31 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
WRIT APPEAL NO.200287/2015 (S-PRO)
IN
W.P.NO.3889/2007
BETWEEN
Dattatreya N.Reddy
S/o late Nagappa,
Age: 56 years
R/o No.36, Hari Krishna Nagar,
Santosh Palya, Kalaburagi.
...Appellant
(By Sri P. Vilaskumar Marthand Rao, Advocate)
AND
1. The Chairman,
Krishna Grameen Bank,
Head Office, PB No.4, Kusnoor Road,
Kalaburagi-585105.
(Now renamed as Pragati Krishna Grameen Bank,
Head Office, Ballari).
2. Sri S.H.Desai
Officer, JMGS-1,
Krishna Grameen Bank, Tengli.
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3. Sri M.S.Kolhapure,
Officer, JMGS-1,
Krishna Grameena Bank
Super Market, Kalaburagi.
4. Sri D.R.Desai,
Officer, JMGS-1,
Krishna Grameena Bank,
Nelogi.
5. Sri K.S.Gyanapnor,
Officer, JMGS-1,
Krishna Grameena Bank,
Dongergaon.
6. Sri B.K.Sirga,
Officer, JMGS-1,
Krishna Grameena Bank,
Super Market, Gulbarga.
7. Sri S.R.Pujar,
Officer, JMGS-1,
Krishna Grameena Bank,
Area Officer, Sedam.
8. Sri C.D.Kulkarni
Officer, JMGS-1
Krishna Grameena Bank,
Khajuri.
9. Sri C.G.Allolli,
Officer, JMGS-1,
Krishna Grameena Bank,
Kolkunda.
10.Sri B.K.Swamy
Officer, JMGS-1,
Krishna Grameena Bank,
Alhalli.
11.Sri B.P.Subedar,
Officer, JMGS-1,
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Krishna Grameena Bank,
Station, Ghanagapur.
12.Sri K. Prakash,
Officer, JMGS-1,
Krishna Grameena Bank,
Aland.
...Respondents
(By Sri Venkatesh G., Advocate for R1;
Appeal against R4 and R7 was dismissed vide order dated
09.01.2018;
Notice to respondent Nos.2, 3, 5, 6, 8 to 12 are served)
This Writ Appeal is filed under Section 4 of the
Karnataka High Court Act praying to allow the appeal and
set aside the order of learned Single Judge dated
10.04.2015 passed in W.P.No.3889/2007 and
consequently allow the writ appeal filed by appellant and
direct the respondents to grant promotion to the appellant
to the post of Officer JMGS-1 from the date it is given to
his juniors with all consequential benefits in the interest of
justice and equity.
This appeal coming on for hearing, his day,
NARAYANA SWAMY J., delivered the following:
JUDGMENT
The appellant/petitioner claims that he joined services of the respondent No.1-Bank as a Junior Clerk on 12.11.1982 and his services has been confirmed with effect from 12.11.1983. He got promotion as a Senior Clerk with effect from 01.03.1987, which is classified as -4- Group-B post. The notification of the respondent's Bank provides for promotion of Group-B to Group-A, for which the respondent No.1-Bank issued a notification/staff circular on 02.02.2005. The appellant/petitioner submits that he was eligible and qualified for considering him for promotion to Group-A Officer as he satisfied the requirement of eligibility under the said notification. However, the respondent No.1 - Bank denied his promotion to the next higher cadre without reasons. The appellant/petitioner submits that the impugned action of the respondent No.1 -Bank is violative of Article 14, 16 and 21 of the Constitution of India. He had approached this Court impugning the denial of promotion in the writ petition and writ petition came to be dismissed on 10.04.2015. Hence, this intra Court appeal.
2. The grounds urged by the learned counsel for the appellant/petitioner is that non-consideration of appellant/petitioner for promotion is in contravention of the notification of the respondent No.1- Bank and Staff -5- Circular No.24 dated 02.02.2005. As per the said circular, to become eligible for promotion, he must have possessed the following qualifications and experience namely;-
(i) (A) Must have passed Matriculation or Senior School Certificate Examination or equivalent examination or Bachelor's degree examination or equivalent from a recognized University and (B) Must have 10 years experience in the concerned Regional Rural Bank as Group 'B' employee.
OR
(ii) (A) Must have passed Matriculation or Senior School Certificate or equivalent examination or Bachelor's degree Examination or equivalent examination from a recognized University and (B) Must have passed Part-I examination of Certificate of Associate of Indian Institute of Bankers' examination and (C) Must have eight years experience in the concerned Regional Rural Bank as Group 'B' employee OR
(iii) (A) Must have passed Matriculation or Senior School Certificate or equivalent examination or Bachelor's degree examination or equivalent from a recognized University and (B) Must have passed Part-I and Part-II examinations of the Certificate of Associate of Indian Institute of Bankers' examination and (C) Must have six years experience in the concerned Regional Rural Bank as a Group 'B' employee.-6-
and the promotion shall be on the basis of Seniority-cum- merit. He had produced the Seniority list in which his name is figured at Sl.No.9 and qualified for consideration and the mode of selection shall be by the Committee on the basis of the written test, interview and performance appraisal reports. In the notification issued by the respondent No.1
- Bank 15 posts of officer were notified and accordingly the petitioner was within the zone of consideration. Written Test carried 70 marks, Interview carried 20 marks, Performance appraisal reports carried 10 marks, in total 100 marks to become eligible for consideration. The candidate had to secure a minimum of 40 marks each in English, banking law, practice and procedures.
3. The learned counsel for the appellant/petitioner submits that the appellant/petitioner on two grounds he becomes eligible, firstly with seniority since he is at Sl.No.9 and secondly he has secured 40% minimum marks and he was rightly considered for interview. Since the promotion was on Seniority-cum-Merit -7- he has got all requisite qualifications. He should have been promoted. He has also made application on the basis that though minimum marks is prescribed in the notification but no such merit was prescribed for the purpose of qualifying in the interview, he had done well and he has secured very good knowledge and flawless service and he had to be selected for promotion. There is arbitrary exercise of power by the respondent in not considering his promotion. The selection list of promotion for 15 posts has been prepared in which the petitioner's name has not been shown. Hence, it is arbitrary on the part of the respondent.
4. In the writ petition the respondents have made available records before the Single Judge and it was the case of the respondent No.1-Bank that in the interview it was fixed 50% minimum marks and since the petitioner secured 40% marks, he had not been selected for the said post. The learned counsel submits that when the process of selection is prescribed by issuing notification there shall not be any amendment of minimum marks retrospectively. -8- What was prescribed under the notification it shall be followed till the completion of process of selection. In the instant case as per the notification issued 40% was minimum marks to secure in the written test and one who secures 20 marks in the interview, since the petitioner is senior most in the zone and he secured more than 40% and he became eligible and he should have been considered for promotion and in support of his claim learned counsel referred the judgments of the Hon'ble Supreme Court in the case of K.Manjusree vs State of Andhra Pradesh and another, reported in (2008) 3 Supreme Court Cases 512 and referred Para No.24 and 25 in which the Hon'ble Supreme Court held that 'the introduction of the requirement of minimum marks for interview, in the selection process (consisting of written examination and interview), would amount to changing the rules of the game after the game was played which is clearly impermissible.' -9-
5. Learned counsel for the respondents vehemently submitted to dismiss this appeal and he supports the order passed by the learned Single Judge. It was his case that there was no flaw in the selection and what was fixed at 60% minimum marks is applied and since petitioner has no malice against selection committee or against the bank and it is presumed that selection is legal and consideration not in contravention of any provision of law and it was the submission that judgment referred by the appellant/petitioner is not applicable in the instant case.
6. It is submitted as per the notification Annexure-C it was for Seniority-cum-merit, appellant/petitioner was eligible to for consideration and it is true that he had secured 40% marks in the written test. He failed in the interview though he had attended the interview but he has not made 60% minimum, naturally he has not been considered for promotion. Under these circumstances, learned counsel submitted to dismiss this -10- appeal and it is his submission that as the learned counsel for the appellant/petitioner submitted, amendment was not brought during the course of the selection but it was open for the committee to prescribe some norms which is applicable and there cannot be any scope for arbitrariness in the selection. The appellant did not secure minimum marks and hence he could not be selected and promoted. Hence, the appeal is liable to be dismissed.
7. Heard the learned counsel for both the parties.
8. The Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi as per notification dated 29.07.1998 Annexure-R1 prescribed the mode of promotion from Group-'B' to Group 'A'. As per the said notification of the Government of India the respondent No.1 - Bank issued notification/Circular No.24 for internal promotions in the bank for promotion of clerk-cum-cashiers (Group 'B') to the scale of officers (Group 'A') as on 01.01.2004, mode of selection, eligibility, composition of committee, reckoning of minimum -11- eligibility, number of candidates to be considered for promotion, selection process, written test marks, interview marks, assessment of performance appraisal report and reservation were prescribed. Once the notification has been issued and selection process commenced, it has to be completed in accordance with the mode which is prescribed under the notification. There cannot be any deviation as otherwise it is nothing but violation of Articles 14, 16 and 21 of the Constitution of India. In the instant case shall be on the basis of written test, interview and five years performance appraisal reports as per the division of marks. Written Test carried 70 marks, interview 20 marks, performance appraisal reports 10 marks in total 100 marks to become eligible to appear for interview. It required that the candidates who secured minimum of 40% each in English test, Banking law, Practice and procedures list shall be prepared. Thereafter, list of selected candidates shall be prepared in the order of Seniority to the extent of 200% of the qualifications for -12- promotion for the purpose of calling for interview in view of the eligibility critaria.
9. It is the case of the appellant/petitioner and it is also true as could be gathered from the records that petitioner/appellant has secured 40% of marks from the subjects. In the seniority list appellant/petitioner's name is shown at Sl.No.9. Whoever secured minimum 40% the list was prepared on the basis of the seniority. This goes without saying that the appellant/petitioner who has secured 40% his name has been left out in the selection list. There is hand written in the selection list to the extent of minimum marks, saying those who have secured minimum 60% they have been considered for selection and promotion. This amendment is subsequent to issuance of the notification Annexure-C dated 02.02.2005. It deviates from the requirement as per the notification to the extent that the minimum marks are increased from 40% to 60% which denied promotion to the appellant. Such a selection list based on amendment to the -13- notification is contrary to law and also inconsistent to the notification dated 29.07.1998 of the Government of India, Ministry of Finance and also Circular No.24 dated 02.02.2005. Hence, the action of the respondent No.1- Bank in denying the appellant/petitioner for consideration to the post of Group 'A' in violation of Articles 14, 16 and 21 of the Constitution of India.
10. The Hon'ble Supreme Court in K.Manjusree Case, it has been held that -
"Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them. P.K.Ramachandra Iyer v. Union of India 1984 (2) SCC 141, Umesh Chandra Shukla v. Union of India 1985 (3) SCC 721, and Durgacharan Misra v. State of Orissa 1987 (4) SCC 646.-14-
In Ramachandra Iyer (supra), this Court was considering the validity of a selection process under the ICAR Rules, 1977 which provided for minimum marks only in the written examination and did not envisage obtaining minimum marks in the interview. But the Recruitment Board (ASRB) prescribed a further qualification of obtaining minimum marks in the interview also. This Court observed that the power to prescribe minimum marks in the interview should be explicit and cannot be read by implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. This Court held that as there was no power under the rules for the Selection Board to prescribed the additional qualification of securing minimum marks in the interview, the restriction was impermissible and had a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidates at written test and interview. This Court observed ;
Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has -15- not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to rules and the merit list prepared in contravention of rules cannot be sustained."
11. In the case of P.Mahendran vs. State of Karnataka reported in 1989 SCR Supl. (2) 385 and held at Para No.2.1 and 2.2 which reads as follows :-
"2.1 If a candidate applies for a post in response to an advertisement issued by a Public Service Commission in accordance with the recruitment rules, he acquires a right to be considered for selection in accordance with the then existing rules. This right cannot be affected by amendment of any rule unless the amending rule is retrospective in nature.
2.2. Construction of amending Rules should be made in a reasonable manner to avoid -16- unnecessary hardship to those who had no control over the subject matter. Every statute or statutory Rule is prospective unless it is expressly or by necessary implication has retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights, the Rules must be held to be prospective. If a Rule is expressed in language, which is fairly capable of either interpretation, it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure."
12. In the light of the above judgments of the Hon'ble Supreme Court, we hold that action on the part of the respondent No.1-Bank is contrary to the notification of the bank and also circular and it is in violation of Article 14, 16 and 21 of the Constitution of India. It is held that denial of promotion to the appellant to the next higher post is held as unconstitutional and arbitrary. Hence, we direct the respondent No.1-Bank to consider the case of the petitioner for promotion from Group 'B' to Group 'A' -17- with effect from the date of promotion given to the juniors to the appellant/petitioner and he is entitled for all consequential benefits. Accordingly, writ appeal is allowed. Impugned order passed by the learned Single Judge is set aside. Writ petition filed by the petitioner is accordingly allowed.
Compliance within eight weeks from the date of receipt of copy of this order.
Sd/-
JUDGE Sd/-
JUDGE sn