High Court of Judicature at Allahabad
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Shanker Lal v. Punjab & Sind Bank & Others - WRIT - A No. - 43641 of 1998  RD-AH 18878 (14 December 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved Court No. 26
Civil Misc. Writ Petition No. 43641 of 1998
Punjab and Sind Bank and others
Hon.Shishir Kumar, J.
The petitioner has approached this Court for quashing the order dated 11th September, 1998 of the respondents refusing to consider the claim of the petitioner for promotion under the clerical grade. Further a writ in the nature of mandamus commanding the respondents to consider the claim of the petitioner for promotion against existing vacancies which comes within the 60 posts as notified vide letter dated 4th July, 1998.
The respondent-Bank namely Punjab and Sind Bank is a nationalized bank under the Government of India undertaking. The petitioner passed High School examination conducted by the Madhyamik Shiksha Parishad, Uttar Pradesh, Allahabad. The petitioner is a member of scheduled caste and is entitled for the benefits as applicable in that regard. Petitioner was initially appointed temporary peon in the employment of the Bank on 2nd May, 1983. From 1983 to 1989, the petitioner was permitted to work without any break. Under the agreement arrived between the Bank Management and Staff Association a decision was taken to regularize the services of temporary employees who have completed 240 days in a calender year from 1.1.1982 to 31.12.1989. For that purposes a list of candidate with length of service was prepared by the respondents in which the petitioner's name finds place at Serial No.9 of the list. In spite of the aforesaid fact, the interview letter was not issued to the petitioner for the purposes of regularisation. When the petitioner was posted in branch office at Allahabad., the Branch Manager of the Punjab and Sind Bank, Civil Lines, Allahabad forwarded the letter on 20.1.1995 informing the General Manager that interview letter has not been issued to the petitioner, although he has been recommended for regularization. Thereafter, an interview letter was issued in favour of the petitioner on 15.9.1995. Petitioner was found suitable and was accordingly issued an appointment letter dated 15.9.1995 with a direction to report through the office of Branch Manager Gaipura. The petitioner has continuously working in the employment of the Bank as detailed above since 1983. The Staff Circular dated 20th February, 1993 was issued by the Personnel Department of the bank was circulated to all the branches informing the policy of promotion to clerical staff. For the purposes of filling up of 60 vacancies of clerical cadre in accordance with the promotion policy, the head office issued a circular dated 4th July, 1998. It was provided that member of subordinate staff who has passed matric or equivalent examination and having four years of satisfactory service, will be eligible to be considered for promotion. Since the petitioner fulfilled all the requisite qualifications for being considered for promotion under the policy, submitted a complete application in a prescribed proforma in time. The same was forwarded by the Manager of the Branch.
The head office vide its letter dated 11th August, 1998, address to the Branch Manager, Gaipura, raised certain queries with regard to the candidature of the petitioner specifically relating to the joining of the petitioner. According to the bank, the joining of the petitioner was 4.11.1995 and the Branch Manager was required to clarify the position in that regard. The Branch Manager vide its letter dated 25.8.1998 informed the head office that the petitioner has joined at Gaipura Branch on 4.11.1995 and prior to that petitioner had worked at Civil Lines, Allahabad and details in that regard is to be verified from the records of Branch Office Civil Lines, Allahabad. When the petitioner came to know regarding the aforesaid fact, a fax message to that effect was sent by the petitioner to the Head Office stating therein that petitioner fulfilled all the requisite qualifications and his claim may be considered for promotion. It appears that without verifying the records from the branch office of Punjab and Sind Bank, Civil Lines, Allahabad, where the petitioner had worked between 1983 to 1995, the respondents have rejected the claim of the petitioner for being considered for promotion on a misconceived ground treating the petitioner that he has joined the service on 4.11.1995 and as such, the petitioner does not complete the eligible criteria of four years satisfactory service in terms of the promotion policy.
Petitioner submits that the reason assigned by the respondents is patently and contrary to the record. The petitioner is working since 1983 in the employment of bank. The petitioner has admittedly completed more than four years of satisfactory service in the employment of bank as Class IV employee, as such, he is liable for promotion to clerical post. The rejection of the candidature of the petitioner dated 11th September, 1998, is illegal, arbitrary and unjustified. The selection, which was held against 60 vacancies only 55 peons/ subordinate staffs have been promoted to the clerical cadre and five vacancies are still lying to be filled for promotion. Petitioner being a scheduled caste candidate it has also been informed to the petitioner that a vacancy of scheduled caste is also lying vacant, as such, the claim of the petitioner can be considered against the said available vacancy.
A submission has been made on behalf of the petitioner that at the time of appointment the seniority list was prepared on the basis of the person working in the bank for 240 days and this fact shows that the services on temporary basis rendered was taken into account for the purposes of appointment. The appointment of the petitioner was not on daily wages. The continuance of petitioner in service since 1983 confers right of a regular status of an employee of the department. Regularisation, confirmation or promotion are wholly irrelevant for the basis of determining the criteria for eligibility for being considered for promotion on clerical cadre as the rule provides for only four years satisfactory service. As admittedly, petitioner has worked since 1983 and since 1992 he has completed more than 240 days in one calender year, as such, the petitioner has completed more than four years satisfactory service, as per Bank Order dated 22.2.1993. The contention of the respondents that petitioner should have worked as permanent employee for four years is based on misreading of the Rule laying down the condition for promotion to be considered and this interpretation is not permissible as the respondents are adding something which is not in the rule and the rule has to be read as it stands as service rendered even on temporary or on daily wage basis is also liable to be counted for the purposes of determining qualified period of four years. The respondents have deliberately ignored the services rendered by the petitioner prior to 4.11.1995. The petitioner was appointed officiating clerical under the order of Zonal Manager, Lucknow. Thus it is clear that service rendered by the petitioner prior to regularisation i.e. 4.11.1995 have been taken into consideration for the purposes of officiating / performance of duties on the higher post of clerk under the Circular dated 22.4.1997. Since vide letter dated 10.12.1997 issued from the Zonal Office, Lucknow, the respondent-bank has permitted the petitioner in writing to officiate and as such, it cannot be said that the petitioner has not completed four years of service. The bank cannot be permitted to say something which is not mentioned in the circular and subsequent modification in the circular dated 23rd June, 1999 will not give any benefit to the bank as the petitioner was eligible in accordance with the circular order issued earlier.
The petitioner has placed reliance upon judgement of Mohindar Singh Gill Vs. Chief Election Commissioner, reported in AIR 1978 Supreme Court, 851, wherein the Apex Court has clearly held that statutory functionary makes an order passed on certain grounds, its validity must be judged by the reasons so mentioned and cannot be submitted by fresh reasons in the shape of affidavits or otherwise. The stand taken in the counter affidavit is contrary to the record against their own circular, as such, the respondents cannot be permitted to take shelter of the said plea. In circular issued in the year 1999 was subsequent to the date as the petitioner was entitled for the benefit of the circular dated 22.2.1993. As the respondent-bank has given benefit of temporary service to other similarly situated employees, as such, denial of the same is violative to Articles 14 and 16 of the Constitution of India. The amendment in the circular was made only when the petitioner filed the writ petition before this Court, as such, it clearly goes to show that the action of the respondents on the face of it is wholly malafide and arbitrary. The name of the petitioner has not been considered only due to filing of the present writ petition though an interim order granted in favour of the petitioner. The large number of vacancies subsequent to the interim order have been filled up by the bank but the petitioner has never been called for consideration.
The learned counsel for the petitioner has placed reliance upon a judgement of this Court reported in (2000) 1 UPLBEC, 46 Committee of Management B.D. Bajoria Inter College Vs. Director of Educations (Secondary) U.P., Lucknow and others. In support of the aforesaid contention the learned counsel for the petitioner submits that this court had taken a view that working on ad-hoc basis has to be taken into consideration. It contemplates five years continuous service and not five years continuous substantive service. Further reliance has been placed upon Kusum Lata Ujalayan Vs. Director of Education, Saharanpur reported in 2002 (4) E.S.C.(Allahabad), 12. This Court has held that there is no hurdle or obstacle in five years continuous service to include both regular / substantive or temporary or substantive or ad-hoc tenure. There is no reason to deviate from this approach. A teacher who teaches and discharge duties possessing minimum qualification as is being discharged by other counter part, though appointed and working on substantive basis, makes no difference as far as expression of word 'teaching' is concerned. Hence, the benefit of ad-hoc promotion should not and could not be denied on any logical or rational basis. The further reliance has been placed in the Apex Court judgement in State of Madhya Pradesh and another Vs. Laxmi Shanker Mishra reported in AIR 1979 Supreme Court, 979 and reliance has been placed upon para 9 of the said judgement. The same is being reproduced below:-
"9. Mr.Gambhir,learned counsel for the petitioner urged that the expression "should have worked on the post for a minimum period of 7 years in the same institution" would, in the context of the rule and the consequences flowing from it, mean only a substantive post on which the Head Master/Principal was confirmed and the confirmed holder of the substantive post for a period of 7 years would be entitled to absorption as envisaged by Rule 3(b). On a pure grammatical construction of the expression it would indisputably appear that the person claiming to be absorbed must have worked on the post of Head Master/Principal of a High/Higher Secondary School for a minimum period of 7 years. Emphasis is on the experience gained by working on the post of Head Master/Principal. A person incharge of the post also works and discharges the duties and functions of the post of which he has taken charge. Even an officiating incumbent of the post does discharge the functions and duties of the post. While examining the relative positions of confirmed Deputy Engineers and Officiating Deputy Engineers in S.B. Patwardhan v. State of Maharashtra, (1977) 2 SCR 775 : (AIR 1977 SC 2051) this Court observed that the officiating Deputy Engineers discharge identical functions, bear similar responsibilities and acquire an equal amount of experience in the respective assignments. Viewed from this angle, the confirmed holder of a substantive post would be discharging the functions attached to the post and when someone is placed in that very post in an officiating capacity or directed to hold charge of the post, he would be required to perform the duties and discharge the functions of the post rendering identical service. If the rule expressly did not make any differentiation between the person working as a confirmed holder of substantive post and an incharge or officiating holder of the post, is there anything in the expression itself which by necessary implication excludes service in any other capacity except as a confirmed Head Master/Principal in a substantive post? A confirmed holder of a substantive post may look tautologous because one can only be confirmed in the substantive post."
Further reliance has been placed by the Apex Court in S.B.Patwardhan and another Vs. State of Maharastra and others 1997 Supreme Court, 2051 and similar other two appeals. The Apex Court has held that it is difficult to hold that officiating deputy engineers do not belong to class II cadre of the Bombay and Gujarat service of engineers. Though drawn from two different sources, the direct recruits and promotees constitute in the instant case a single integrated cadre.
In view of the aforesaid fact, the learned counsel for the petitioner submits that rejection of the claim of the petitioner for not consideration for promotion to the clerical grade is wholly illegal and as such is liable to be quashed.
On the other hand, the learned counsel for the respondents filed a counter affidavit stating therein that the petitioner was appointed on daily wages basis as there was a temporary need of peon in the bank. After 1983 whenever there was temporary need of peon, the petitioner was engaged on daily wages basis. The petitioner as per agreement was regularised on the post of peon by order dated 15.9.1995 and in pursuance joined on 4.11.1995. It is wrong to say that the petitioner is continuously working on daily wages. He was appointed on regular and permanent basis vide order dated 15.91995. From perusal of Clause 2 (A) of the circular it is clear that any person who have completed four years service will only be considered for promotion to clerical cadre. The four years period of the petitioner started from 4.11.1995 will expire on 4.11.1999. As the petitioner does not fulfil the requisite qualification for being considered for promotion, therefore, he is not entitled for promotion. The petitioner wants to take benefit of service rendered on daily wages basis under Policy dated 22.2.1995. The services rendered only on permanent basis can be taken into account for being considered for promotion. Since the petitioner had joined on 4.11.1995 on promotional post and in July, 1998 he has not completed four years service, as such, under the promotion policy, he was not considered for promotion to the post of clerk. The respondents have placed reliance upon a judgement of the Apex court reported in (2007) 1 Supreme Court Cases, 408, Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. In support of the aforesaid contention the learned counsel for the respondents submits a temporary employees, who includes casual, daily-rated and ad-hoc employees have got no right to post. Further reliance has been placed upon a Apex Court judgement reported in AIR 1993 Supreme Court 1564, Excise Commissioner, Karnataka Vs. V.Sreekanta. In support of the aforesaid contention the learned counsel for the respondents submits that determination of seniority is to be counted from the date of regularisation and not from the date of ad-hoc appointment. Further reliance has been placed upon a judgement reported in (2006) 6 Supreme Court 558 K. Madalaimuthu and another Vs. State of Tamilnadu and others. In support of the aforesaid contention the learned counsel submits that seniority of a person appointed temporarily can be counted only from the date when his services were regularised. Further reliance has been placed upon a judgement of the Apex Court reported in 2007(1) LLJ, 484 Union of India and others Vs. Sheela Rani. It has been held by the Apex Court that whether they qualify in a given case or not is not relevant but what is relevant is that regularization should be prospective and not retrospective as the chances of their upsetting the seniorities cannot be overlooked.
In view of the aforesaid contention, the learned counsel for the respondents submits that as on the day when the petitioner was to be considered he had not completed four years of regular service, therefore, he was not entitled for promotion.
I have considered the submission made on behalf of the parties and have perused the record.
From the record it is clear that initial appointment of the petitioner was in the year 1983 and he was permitted to continue. The Staff Circular dated 4.7.1998, which is a promotion policy states that a member of subordinate staff, who has passed matric or above examination from any recognised board or university and having completed four years of satisfactory service will be eligible to be considered for promotion to the clerical grade. From 1990, the petitioner was continuously working in the bank. The list of eligible candidates indicates that various temporary peons who were engaged in 1982, their names have been included even the name of one Ramesh Chandra at serial No.13 whose appointment is of 1998 is also included. In the seniority list of temporary peons, the name of petitioner is at serial No.3 . The name of the petitioner was also sent for consideration, as it was not considered, as such, it was recommended by the manager where the petitioner was working. In the promotion policy, it is not mentioned that the service rendered for a period of four years should be regular or on substantive basis. Only four years of satisfactory service was necessary for the purposes of consideration of promotion. It appears that after rejection of the claim of the petitioner, when the respondents came to know that petitioner has filed a writ petition then they have changed the promotion policy dated 23rd June 1999. In place of four years satisfactory service, has been incorporated four years of regular service of bank. It clearly goes to show that 'regular' word has been included, it was not in the prior policy which is the basis of rejection of the claim of the petitioner. The judgement cited by the respondents does not help to the respondents as in every case it has been held that for the purposes of seniority the date of regularisation is to be considered. But the case in hand is a case of promotion, as the relevant promotion policy of bank clearly states four years satisfactory service in the bank, therefore, petitioner was eligible to be considered for the post of clerk when the respondents have considered other candidates. As it is apparent that the letter dated 4th July 1998, the eligibility as mentioned "A member of subordinate staff who has passed matric or above examination from any recognised Board / University and having completed four years of satisfactory service will be eligible to be considered for promotion to clerical cadre." There is no whisper in the said eligibility criteria that it should be a regular service. It has been changed and in place of 'satisfactory', the 'regular' word has been incorporated. The word 'satisfactory' has been defined in Collins Cobuild Advance Dictionary "something that is satisfactory is acceptable to you or fulfils a particular need or purpose."
In Webster dictionary the word 'satisfactory' has been defined 'adequate giving satisfaction'. The word 'regular' was substituted in the bank policy for promotion of subordinate staff to the clerical grade by June 23rd 1999. It was not in the earlier policy at the time when the petitioner was being considered for the purposes of promotion.
In my opinion, while interpreting the provision of eligibility of a person for consideration of his claim for the next higher post has to be seen as mentioned in the circular. In the present case, circular dated 22.2.1993 has only mentioned the word "four years satisfactory service". The petitioner had performed his duties although on temporary basis much prior to his regularisation on 4.11.1995, as such, in view of the circular, service rendered prior to the said period cannot be ignored for the purposes of eligibility and fulfilling the conditions mentioned in Clause 2-A of the circular dated 22.2.1993. In my opinion, the ground taken in the impugned order that the petitioner does not fulfil the eligibility criteria of four years satisfactory service as provided in Clause 2-A of the promotion policy cannot be accepted.
In AIR 1993 Supreme Court, 2462 Kailash Chandra Rajawat Vs. Union of India and another, the Apex Court has held that eligibility, completion of prescribed period of service, period of temporary service on pre-promotional post has to be considered. The Apex Court has further observed in para 5 that "the period spent by the appellant, as temporary duty prior to his regularisation was required to be taken into consideration for considering his eligibility for promotion and when so taken, it is apparent that appellant possessed the requisite experience as a trains clerk for his eligibility to promotion as Goods Guard-C."
In 2007 (7)Supreme Court, 1998, Arjun Singh Rathore & others Vs. B.N. Chaturvedi and others, the Apex Court while considering the Regional Rural Bank (Appointment and Promotion of Officers and others Employees) Rules, 1988 and amended Rule 1998, has held that the vacancies should be filled under the rules which were in operation on the day when the vacancies have occurred. In para 6 the Apex Court has observed as under:-
"6. Mr.Calla, the learned senior counsel for appellants has argued that the matter was fully covered by the judgement of this Court in State of Rajasthan vs. R.Dayal, 1997(10)SCC 419 wherein it has been held that the vacancies to be filled by promotion were to be filed under the rules which were in operation on the date when the vacancies had occurred. Relying on and referring to an earlier judgment in the case of Y.V.Rangaiah Vs. J.Sreenivasa Rao, (1983) 3 SCC 284, it was opined as under:
This Court has specifically laid (sic) that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court has held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose."
Further, Court has held that "we are therefore of the opinion that the vacancies which have occurred prior to the enforcement the Rules, 1998 had to be filled in under the Rules of 1988 and as per the procedure laid down therein."
In view of law laid down by the Apex Court it is clear that a person has to be considered for the purposes of promotion on the basis of eligibility criteria which were in operation on the day when he was being considered. The claim cannot be rejected taking any other ground. Therefore, I am of the opinion, that the petitioner was entitled to be considered for promotion on the basis of circular for promotion of 22.2.1993. The subsequent circular dated 23.6.1999 is not applicable in the case of petitioner. It is also clear from the record that while entertaining the writ petition, the respondent-bank was directed to keep one post vacant of the clerical cadre and the same is being kept in pursuant of the interim order passed by this Court.
In view of the aforesaid fact, the writ petition is allowed and the order dated 11th September, 1998 is hereby quashed as it relates to the denial of the promotion of the petitioner in clerical cadre. The respondent-bank is hereby directed to consider the case of the petitioner for the purposes of promotion on the post of clerk in view of the observations made above and in accordance with the relevant promotion policy dated 22.2.1993. As the matter is kept pending from 1998, therefore, it will be appropriate that the authority will take necessary decision for the purposes of promotion of the petitioner within a period of three months from the date of production of the certified of the order.
No order as to costs.
Dt. December 14 , 2007
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