Calcutta High Court (Appellete Side)
Pradip Kumar Sarkar & Ors vs Bangiya Gramin Vikash Bank & Ors on 8 August, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
F. M.A. 223 of 2008
Pradip Kumar Sarkar & Ors.
Versus
Bangiya Gramin Vikash Bank & Ors.
For the Appellants: Mr. Sardar Amjad Ali
Mr. Sarder Shahin Iman
For the Respondent-Bank : Mr. Subir Sanyal
Mr. Suthirtha Das
Heard On: 16.07.2008 & 30.07.2008.
Judgment On: 08.08.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
This appeal has been preferred at the instance of the writ petitioners challenging the judgment and order dated 2nd April, 2001 passed by the learned Single Judge whereby and whereunder the said learned Single Judge dismissed the writ petition on merits. Similar issues were also raised in another writ petition at the instance of some other similarly placed employees of the Nadia Gramin Bank and the said writ petition was finally decided by another Hon'ble Single Judge of this court following the present judgment and order under appeal passed by the learned Single Judge herein. Assailing the said judgment of the learned Single Judge an appeal was preferred before the Division Bench of this Hon'ble court and numbered as F.M.A. 111 of 2008 (Samsul Haque & Ors. vs. Nadia Gramin Bank & Ors.).
The aforesaid appeal was finally decided by this Bench on 16th May, 2008 wherein the judgment and order under appeal herein was specifically referred to and considered by this Division Bench. This Division Bench while deciding the appeal in the case of Samsul Haque & Ors. (Supra) scrutinised the impugned judgment and order under appeal herein. In the aforesaid decision, this Bench considered all the issues raised in this appeal and categorically disapproved the findings of the learned Single Judge as recorded in the judgment and order under appeal herein. The relevant portions from the said judgment are set out hereunder:
" The learned Single Judge following the earlier judgment delivered by another Hon'ble Single Judge of this Court in W.P. No. 8066 (W) of 1999 (Pradip Kumar Sarkar vs. Murshidabad Gramin Bank and Ors.) held as hereunder:
"16. Before going to the next point, it is relevant to take note that the 1998 Rules, in effect, postulates that promotion to be given thereunder is actually based on merit-cum-seniority and not seniority-cum-merit. This view has found support in a judgment delivered by another Hon'ble Judge of this Court in W.P. 8066(W) of 1999 (Pradip Kumar Sarkar and Ors. Vs. Murshidabad Gramin Bank and Ors. by judgment delivered on 2.4.01). In the said judgment, it has been held that although under Rule 2(d) it has been stipulated that promotion is to be given on the basis of seniority-cum-merit, but in effect, it is merit-cum-seniority. The learned Single Judge has also held that Clause 2(d) has to be read as merit-cum-seniority within the definition of the said phraseology. The relevant paragraphs of the said judgment are to be found at Pages 6 and 9 to 11 thereof and, they are accordingly reproduced hereunder as follows:
Page-6 (top) ' With regard to the second ground Mr. Sanyal has submitted that the relevant Standing Order being Standing Order No. 642 E dated July 29, 1998, if read as a whole, clearly postulates that the promotion shall be made on merit cum seniority basis and not as seniority cum merit as wrongly stipulated in 2(b) thereof. According to Mr. Sanyal, Clause 2 of the third schedule of the said Standing Order, if read as a whole, would logically suggest such meaning.
Mr. Sanyal in support of his contention has cited two Supreme Court decisions reported in 98 Vol. III Supreme Court Cases, Page 694 and AIR 1986, Supreme Court, Page 1043.' Page 9-11 ' Rule 2 of the third schedule of the Standing Order is relevant for consideration in the instant case. Sub-Clause (b) denotes the promotion would be made on seniority cum merit. The eligibility clauses being clause
(e), (b) and (i) give the criterion to bring the candidates within the zone of consideration.
Clause (f) prescribes the mode of selection i.e. by holding written test, interview and performance assessment. Clause
(g) deals with the composition of the selection committee.
Clause (j) stipulates that the selection shall be on the basis of performance in the written tests, interview and performance appraisal require for proceeding five years. Sub-Clause A stipulates that a candidate to become eligible to be called on in interview must obtain 40% marks in both the groups whereas sub-clause B denotes that there is no minimum qualifying marks in the interview. Whereas sub-clause C the last five years records are to be considered for awarding marks. There are total 100 marks in the selection process out of which written tests denotes 60 marks, interview and performance records 20 marks each.
It is significant that there is no minimum marks prescribed for being considered for ultimate selection. If I have to accept the contention of Mr. Mukherjee that the promotion in the instant case is in accordance with seniority cum merit then I have to find out from the standing order the minimum marks to make the senior most eligible for the promotional post. In absence of such marking it is very difficult to ask the authority to act on the basis of the Standing Order by giving promotion to the senior cadre on the basis of minimum eligible qualification when there is no minimum eligible qualification fixed for the said post. The rule of interpretation does not permit me to add or delete any word. I have to give harmonious construction of the said Standing Order as far as practicable. Hence, reading clause 2 of the third schedule of the said Standing Order and taking a sum total of the relevant sub-clauses and the meaning thereof it appears to me that although the said promotion has been stipulated to be made on the basis of seniority cum merit it is in effect merit cum seniority. I, therefore, find substance in Mr. Sanyal's argument. I hold that clause 2(d) has to be read as merit cum seniority in accordance with the definition of the said phrase as held by the Apex Court in various judgments including the judgment reported in AIR 1998 Supreme Court, page 2565. Hence I do not find any irregularity in the selection process."
[SIC but underlining by this Court] The learned Single Judge following the said judgment in the case of Pradip Kumar Sarkar & Ors. (Supra) came to an erroneous finding that the 1998 Rules although provides that promotion is to be given on the basis of seniority-cum-merit, in effect, it is on the basis of merit-cum-seniority. The aforesaid finding of the learned Single Judge is virtually contrary to the prescribed rules which are applicable in the matter of granting promotion. The learned Single Judge, in our opinion, was clearly misled by the provisions mentioned in the Rules with regard to the mode of selection. The prescribed procedures for mode of selection can under no circumstances change the basis of promotion which has been clearly mentioned in the said Rules i.e. seniority-cum- merit........................................................................" The learned Single Judge herein upon going through the rules and on examination of the records specifically observed that although the promotion has been stipulated to be made on the basis of seniority-cum-merit, it is, in effect merit-cum-seniority, which we cannot approve since Court has no power to relegislate the statute and/or rewrite the rules. When the rules specifically provide that the selection for promotion should be made on the basis of seniority-cum-merit then all endeavour should be made to ensure that the said principle is not all defeated. In the event, the procedure for granting promotion is inconsistent with the aforesaid declared rules based on seniority-cum-merit then such inconsistency should be avoided in such a manner so that the prescribed principle of promotion on the basis of seniority-cum- merit remains unaffected.
The aforesaid issue was considered in details in the earlier decision of this Bench in the case of Samsul Haque & Ors. (Supra) wherein the instant judgment and order under appeal was held to be erroneous and, therefore, disapproved by this Bench.
The learned Counsel of the respondent bank although urged before this court that the aforesaid judgment passed by this Division Bench in the case of Samsul Haque & Ors. (Supra) is distinguishable on facts, we, however, do not accept the aforesaid submissions. In our view, the issues raised in this appeal are totally covered by the earlier judgment of this Bench in the case of Samsul Haque & Ors. vs. Nadia Gramin Bank & Ors. (F.M.A. 111 of 2008).
The learned Counsel of the respondent bank also submitted before this court that the appellants herein having full knowledge of the selection procedure adopted by the bank, participated in the said selection process without raising any objection and, therefore, cannot challenge the validity of the selection procedure after failing to succeed in the said selection process. The learned Counsel of the respondent bank further submits that the appellants herein admittedly, participated in the subsequent selection process and already got promotion to the higher posts.
The subsequent participation of the appellants in the selection process for promotion to the higher posts cannot validate the earlier actions of the respondent-bank wherein the selection for promotion was made in violation of the prescribed rules since the selection for promotion was made on wrong and illegal implication of the principle of seniority-cum-merit. As a matter of fact, the respondent bank followed the principle of merit-cum-seniority in violation of the prescribed rules wherein the principle of seniority-cum-merit has been recognised as the only basis for granting promotion to the higher grade. The promotion granted by the respondent bank in violation of the prescribed rules cannot be sustained in the eye of law. Participation of the appellants herein in the selection process or the subsequent selection process for promotion does not validate the illegal action of the said respondent bank in granting promotions in violation of the prescribed rules.
Even though we are not inclined to pass any mandatory order directing that the appellant/writ petitioner be granted promotion, at the same time we cannot approve the selection list for promotion which has been prepared in violation of the prescribed rules for promotion based on the principle of seniority-cum-merit. After detection of the illegalities in the matter of selecting the candidates for promotion to higher scale of pay, this court cannot remain a silent spectator and approve the illegal actions and/or orders of the respondent bank.
We cannot approve the illegal actions of the respondent bank in the matter of granting promotion to its employees to the superior scale in violation of the prescribed rules as we have already observed in the case of Samsul Haque & Ors. (Supra) also. Therefore, though in it's desperate attempt, the respondent-bank although raised some technical objections to defend its illegal actions in the matter of granting promotion to its employees to the superior scale in violation of the prescribed rules, the said objections cannot be sustained in the eye of law.
The impugned seniority list as published vide circular dated 10th December, 1998 as well as the process of selection of the candidates for promotion to the post of Scale II officers and the promotions already granted to the respondent Nos. 5 to 13 cannot be sustained in the eye of law and the same are, therefore, quashed.
For the reasons discussed hereinbefore and in view of the earlier decision of this Bench in the case of Samsul Haque & Ors. (Supra), this appeal stands allowed and the judgment and order under appeal passed by the learned Single Judge are set aside.
The authorities of the respondent bank are directed to undertake the selection process de novo for granting promotion to the post of Scale II officers from Scale I officers following the principle of seniority-cum-merit as clearly mentioned in the 1998 Rules. The respondent bank should also follow the procedures prescribed under the aforesaid 1998 Rules in the manner discussed and explained by this Bench in the case of Samsul Haque & Ors. (Supra).
Since a considerable time has already elapsed, the authorities of the respondent bank are directed to complete the selection process de novo in the manner mentioned hereinabove without any further delay, and positively within a period of eight weeks from date.
Let it also be on record that the respondent Nos. 5 to 13 did not enter appearance in spite of service of repeated notices.
In the facts and circumstances of the present case, there will be no order as to costs.
Let urgent Xerox certified copy of this judgment, if applied for, be given to the learned Advocates of the parties on completion of usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree [TAPAN MUKHERJEE, J.]