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RENGANATHAN versus THE GENERAL MANAGER

High Court of Madras

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Renganathan v. The General Manager - W.P.(MD) No.2444 of 2007 [2007] RD-TN 2216 (6 July 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06/07/2007

CORAM:

THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN

W.P.(MD) No.2444 of 2007

Renganathan .. Petitioner versus

The General Manager

Personal Administration Department

Indian Overseas Bank

Central Office

Chennai-2. .. Respondent PRAYER

Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus calling for the entire records of the respondent resulting in the respondent's impugned order dated 7.3.2007 issued in Circular No.122 of 2006-2007 and quash the same so far as category under Process A is concerned and directing the respondent to adopt the system of conducting written test and fixation of ratio of 1:2 i.e., one post : two eligible candidates for selecting them to be promoted as official cadre Junior Management cadre scale I from clerical cadre in respect of category under Process 'A' as followed in the settlement dated 28.7.1986 entered into between the respondent and the Union.

For petitioner ... Mr.V.Prakash

Senior Advocate for Mr.V.R.Venkatesan For respondent ... Mr.N.G.R.Prasad :ORDER



The respondent herein follows a promotion policy from Clerical Cadre to the Officer Cadre in terms of a settlement arrived at between the Management and the workmen represented by the All India Overseas Bank Employees' Union. The Memorandum of Settlement was signed under Section 12(3) of the Industrial Disputes Act, 1947 on 18.5.2001 before the Assistant Labour Commissioner, Central-II, Chennai, in an industrial dispute between the Management of Indian Overseas Bank, the respondent herein, and the workmen represented by the Union in the matter of promotion from the Clerical Cadre to the Officer Cadre Junior Management Scale I.

2. Prior to this settlement dated 18.5.2001, there were settlements arrived at under Section 12(3) of the Industrial Disputes Act, 1947 on 22.3.1978 and on 28.7.1986. The terms of settlement right from 1978 agreed on promotion of employees by two processes i.e., Process A and Process B. While Process A considered years of service alone as the only qualification, Process B considered academic qualification along with number of years of service as a minimum. It may be noted that in the first of the settlements entered into on 22.3.1978, under Process A, 40 of the promotion to the Officer Cadre was on the basis of bank seniority and interview. Employees whose qualification was less than matriculation and who have completed 12 years of service, were considered for promotion by an interview. As regards the Process B, 60 of the total promotion was done in respect of employees in Clerical Cadre having put at least three years of service and possessed a minimum of educational qualification and have to undergo a test and an interview as given in the Memorandum of Settlement.

3. The said settlement was followed by yet another settlement dated 28.7.1986 between the respondent Management and workmen represented bythe All India Overseas Bank Employees' Union. The process of promotion by selection retained the two channels, namely Process A and Process B. 50 of the promotion through Process A was to be on the basis of a written test in Banking Law and Practice in English. Under process A, all employees who had completed 10 years of service and above in the Clerical Cadre, except pure record keepers whose qualification is less then VIII standard, were eligible to apply for the written test. The marks allotted included allocation for service, qualification and performance. 50 of the promotion was reserved for Process B. The eligibility started with three years service minimum with a post graduate or double graduate with CAIIB as minimum qualification to start with. Process B required written test for considering the candidates for promotion. Apart from this, allotment of marks was also given for service, qualification and performance at the Branch. It is seen that the said process of selection under Process A and and Process B continued with Circular Memos issued on 31.7.1990, 26.7.1993, 17.9.1998 and 3.11.1998.

4. In the year 2001, the Memorandum of Settlement was arrived at between the respondent and the All India Overseas Bank Employees' Union on 18.5.2001 in the matter of promotion from Clerical Cadre to Officer Cadre Junior Management Scale I. It was stated therein that there were some differences between the parties who sought the intervention of the Assistant Labour Commissioner, Central-II, Chennai, for settlement of the dispute; that discussions were held, keeping in mind the changing banking scenario and the challenges and the demands on the respondent herein and its various resources to meet these challenges and to fulfil the aspirations of the employees by providing adequate and planned career, fast track career opportunities. The existing policy for promotion was agreed to be modified to achieve the objective of quality human resources. Thus, in terms of the settlement reached and signed on 18.5.2001, Process A and Process B selection for promotion continued to be retained for selection of candidates for promotion to the cadre of Officer. The Process B selection mode continued with written test.

5. The present settlement retained two processes for promotion as before. However, as regards Process A, it varied the earlier eligibility criteria as well as the mode of selection. Under Process A, 40 of the promotion to the Officer Cadre shall be on the basis of bank seniority and shall be on the basis of an interview. The terms of settlement show that under Process A, those who have completed 18 years of service in the Clerical Cadre except Record Keeper and Shroff/Record Keeper whose qualification is less than VIII standard, are eligible to apply for selection through this process. The total number of eligible candidates called for interview shall be in the ratio of 1:4 i.e., for 100 vacancies to be filled, 400 eligible and willing candidates according to the bank seniority in the order of dates of joining to the Clerical Cadre on the date of promotion cadre as the case may be, are to be considered. In the event of employees having equal bank seniority, the employee who is senior in age will have preference. In the case of Process B, the eligibility is minimum service and academic qualification with reference to the various years of service specified therein. It is seen that that an employee completing 18 years of service can choose to come either under Process A or Process B. The essential difference between these two channels is that, in Process A, while the number of years of service is alone the criteria and the selection only by interview, in Process B, academic qualification is given a weightage and the selection is through a written test. The allotment of marks for Process A and Process B are as follows:

Process A: Marks Interview 50

Educational qualification 05

Confidential Report ` 05

Service 35

Weightage for Rural Service 03

Entrustment of Duties of

Special Assistant/Stenographer 02

-----

Total 100

-----

Process B: Marks

Written Test 65

Service 20

Qualification 07

Confidential Report 05

Weightage to Rural Service/

entrustment of Special

Assistant/Stenographer Duties 03

-----

Total 100

-----

Leaving aside for a moment the terms of this settlement, we may have to see the effect of a settlement reached under Section 12(3) of the Industrial Disputes Act, 1947.

6. The question of binding nature of the settlement reached and the right of an individual to question the same either in his representative capacity as one belonging to a minorityUnion not governed under the settlement proceedings or in his individual capacity came up for consideration in the decision reported in(1976) 4 SCC 736 (HEBERTSONS LTD. Vs. WORKMEN). The Apex Court held that in the case of a settlement reached, the same would be binding on all workers, even if a small number of members were not members of the majority union. The Apex Court held that when a recognised Union negotiates with the employer, the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement, since a recognised union which is expected to protect the legitimate interests of the labour, enters into a settlement in the best interests of the labour. The Apex Court held that this would be the normal rule; however, there may be allegations of mala fides or fraud and other inducements. Until any of these facts are shown, prima facie, a settlement arrived at in the course of collective bargaining is entitled to due weight and consideration. The Apex Court further held that the settlement has to be taken as a package deal and a settlement cannot be judged by the yardstick normally adopted in scrutinising an award in adjudication, and a settlement cannot be scanned in bits and pieces, but has to be accepted or rejected as a whole. In view of the inherent complexities involved in arriving at a settlement, considering the diverse situations and other contingencies, a settlement arrived at through a process of conciliation, hence, is given a great weightage. Except in the case of mala fides shown or a patent unfairness in the terms of settlement or attribution of an oblique motive based on definite materials, a settlement reached is prima facie considered to be in the interest of the employees.

7. In the decision reported in 1995-I-LLJ 719 (I.O. BANK OFFICERS UNION Vs. INDIAN OVERSEAS BANK), AR.Lakshmanan,J., as he then was, held that a settlement entered into between the parties after the negotiation ... and deliberation cannot, at any stretch of imagination, be unreasonable unfair and discriminatory. ... What is good for the majority is the good for the minority. That is the rule of democracy. ... The settlement has to be accepted or rejected as a whole. There cannot be a midway exercise. That is precisely what the Supreme Court has deprecated in HEBERTSONS LTD Vs. WORKERS reported in AIR 1977 SC 322. Referring to the scope of Settlement under Section 12(3) of the Industrial Disputes Act, the Supreme Court, in the decision reported in (2000) 1 SCC 371 (NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN), held that Section 18(1) and 18(3) divide settlements into two categories, (1) those arrived at outside the conciliation proceedings and (2) those arrived at in the course of the conciliation proceedings. The Apex Court further held "When a settlement is arrived at during the conciliation proceedings it is binding on the members of the Workers' Union as laid down by Section 18(3)(d) of the Act. It would ipso facto bind all the existing workmen who are all parties to the industrial dispute and who may not be members of the Unions that are signatories to such settlement under Section 12(3) of the Act. The Act is based on the principle of collective bargaining for resolving industrial disputes and for maintaining industrial peace." In the decision reported in (1994) 6 SCC 145 (RAM PUKAR SINGH Vs. HEAVY ENGINEERING CORPORATION), the Apex Court reiterated that a settlement reached under Section 12(3) is binding on all workmen whether they were members of the Union or not.

8. Referring to the binding nature of the settlement reached in accordance with Section 12(3), in the case reported in (2002) 3 SCC 411 (ITC LTD. WORKERS' WELFARE ASSN. Vs. MANAGEMENT OF ITC LTD.), after referring to the various decisions, the Supreme Court held "What follows from a conspectus of these decisions is that a settlement which is a product of collective bargaining is entitled to due weight and

consideration, more so when a settlement is arrived at in the course of the conciliation proceedings. The settlement can only be ignored in exceptional circumstances viz., if it is demonstrably unjust, unfair or the result of mala fides such as corrupt motives on the part of those who were instrumental in effecting the settlement. That apart, the settlement has to be judged as a whole, taking an overall view. The various terms and clauses of settlement cannot be examined in piecemeal and in vacuum." In the said decision, the Apex Court also held where a settlement was arrived by a vast majority of workers through a process of conciliation, it must be presumed to be just and fair.

9. In the background of the law thus declared on the efficacy of a settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947, we may have to consider the contentions of the petitioner.

10. The brief facts projected by the petitioner herein are that the petitioner herein is an employee in the respondent Indian overseas Bank. He joined the services as Clerk as early as 3.1.1977. The petitioner states that he had an impeccable record of 28 years of service in the Department. He is also the Assistant General Secretary in the All India Indian Overseas Bank Employees SC/ST Welfare Association. His seniority Roll number is 11302 in the Clerical Cadre. He is not a member in the All India Overseas Bank Employees' Union or any other Union. The allegation of the petitioner is that from the time he got out of the above-said Union and formed a separate Union along with other employees, the members of other Unions are not getting justice on par with the Union members of All India Overseas Bank Employees' Union in matters of promotion and are penalised by the Management in every aspect. The petitioner had appeared for selection through Process A more than once but was not selected at all.

11. The grievance of the petitioner herein is that the Process A selection of candidates solely on the basis of interview as per the settlement of 2001 is an arbitrary method, in that, it seeks to promote the interest of only of those members of the All India Overseas Bank Employees' union. The petitioner alleges that he and other Union members are affected by the new system introduced for Process A prescribing interview alone under the settlement dated 18.5.2001, dropping written test requirement for Process A candidates, while retaining the written test for Process B. He submitted that there are no grounds to withdraw the pattern that prevailed prior to this settlement. Except for introducing an element of arbitrariness, the present selection process has no merit to accept.

12. The petitioner states that the total number of eligible candidates to be called for interview under Process A shall be in the ratio of 1:4 i.e., if there are 100 vacancies to be filled under this process, 400 eligible and willing candidates according to the strict bank seniority from the list are to be called proportionately for interview. The candidates like the petitioner, even though have put in 18 years of service and above having better academic merit, have to opt for Process B, considering the element of arbitrariness writ large in the process of selection by interview in Process A. When candidates far junior to the petitioner are selected in Process A by interview, the entire system of selection by interview manifests colourable method lacking in fairness.

13. The petitioner states that selection by interview under Process A had conferred on the juniors to the petitioner an unmerited gain over other seniors and the procedure has been followed on 7.3.2003, 19.7.2003 and 11.7.2005, wherein, all the selected candidates in majority were from the All India Overseas Bank Employees' Union. From 2001 to 2005, the Management had neglected selecting the eligible candidates from other Unions. In spite of representations made, the rightful claim of a large number of eligible candidates available in other Unions have been ignored. It is stated that among the eligible candidates selected as per Circular dated 11.7.2005, no single member from the Union in which the petitioner is a member and from other Unions were selected to the higher post. The selected persons are far junior in experience when compared to the petitioner. The petitioner states that he appeared for the interview twice; although he did well, was not successful. Considering the scope of arbitrariness in the assessment of a candidate under Process A, having interview alone as a testing ground in contrast to the selection by written test in Process B which is a fool proof, abuse-free method, the selection by Process A is bad, unrealistic, arbitrary and hence, liable to be struck down as violative of Article 14 of the Constitution of India.

14. On 8.12.2005, the petitioner represented that the method of selection in Process A was defective and the chances for manipulation in awarding marks was high. In spite of a representation, there was no reply to the same. Hence, this prompted the petitioner and others to file W.P.Nos.11628 to 11630 of 2005, wherein, they sought for quashing of the selection made on 1.12.2005 under Circular No.91 of 2005-06 dated 1.12.2005 in respect of selection of candidates from Sl.Nos.22 to 191, selected on the basis of Process A. It is further stated that in W.P.No.11631 of 2005, he also challenged the settlement made on 18.5.2001 before the Assistant Labour Commissioner Central-II, Chennai, as null and void and not binding on the petitioners therein who are not members of the All India Overseas Bank Employees' Union. It is stated that no counter affidavit has been filed so far and no stay was also granted. The promotion policy between the bank and the Union for the year 2003 was the same as the one entered as per the settlement dated 18.5.2001. For the year 2006-07 under Circular No.122 of 2006-07 dated 7.3.2007, the petitioner states that the very same defective procedure is adopted which is likely to introduce an element of arbitrariness in the matter of giving promotion, which is totally unconstitutional.

15. The petitioner challenges the validity of the order dated 7.3.2007 issued in Circular No.122 of 2006-2007 and seeks to quash the same so far as Category under process A is concerned and to direct the respondents to adopt the system of conducting written test and fixation of ratio of 1:2 for selecting them to be promoted as Official Cadre Junior Management Cadre Scale I from Clerical Cadre in respect of category under Process A as followed in the settlement dated 28.7.1986 entered into between the respondent and the Union.

16. Learned senior counsel appearing for the petitioner submitted that the dispensation of the written test for Process A is totally illegal, since it had resulted in abuse in the procedure for selection. He further submitted that when the cadre to which the promotion is to be made and the source from which the promotion is taken remained the same, the recruitment process should also be identical. He further submitted that the method of evaluation of candidates fit for promotion by interview alone and by dispensing with the written examination solely by raising the years of experience to 18 is not an intelligible, rational method of evaluation. He submitted that there is no rationality to support this dispensing with of the written examination in Process A; consequently, unless and until there is a basis and an intelligible differentia to rest the same in contra distinction to Process B and the object sought to be achieved by such a differential method of evaluation, the entire process is arbitrary and hence, liable to be struck down as violative of Articles 14 and 16 of the Constitution. He further submitted that the recruitment by Process A cannot be said to be a fair and rational method. Pointing out to the weightage given in Process A and in Process B as to the seniority of the candidates, he submitted that when both the processes recognise service and seniority as factors in evaluation, the two different methods of evaluation, one by interview and the other by written test, introduced an element of uncertainty and arbitrariness and a risk thrown out of preferences shown by the Selection Committee in Process A. The classification between Process A and Process B is very thin, considering the fact that a person with 18 years of service still has the choice to come and opt for either Process A or Process B. He relied on the decision reported in AIR 1996 SC 11 (TATA CELLULAR Vs. UNION OF INDIA) to state that the narrowing down of the chances for similarly placed persons by the dual criteria strikes at the root of fairness in the matter of evaluation; as such, any method which gives room for an abuse and introduces an element of arbitrariness among the selection of persons belonging to the same cadre to the same post is violative of Article 14 and hence, subject to judicial review. He also submitted that unless the basis for such differential treatment is shown, the criteria adopted cannot answer the test of Article 14. In this regard, he placed reliance on the decision reported in AIR 1958 SC 538 (RAM KRISHNA DALMIA Vs. JUSTICE TENDOLKAR).

17. The respondent has filed its counter affidavit and pointed out that the petitioner, along with two others, had taken their chance under the promotion policy during 2002, 2003 and 2005. The respondent had further stated that the petitioner and others filed W.P.Nos.11628 to 11631 of 2005. The respondent had questioned the maintainability of the writ petitions on the ground that the petitioners have an effective remedy under the Industrial Disputes Act. Further, having taken part in the promotion process, it is not open to the petitioner to challenge the same at this distance of time. The respondent pointed out that the All India Overseas Bank Employees' Union is representing 86 of the staff. Under the promotion policy settled as per the settlement reached on 18.5.2001, the petitioner had taken his chance in the promotion process. It is further stated that the settlement reached by the All India Overseas Bank Employees' Union commands the support of the majority of the staff of the bank. It denied the allegation that the persons selected for promotion belonged to the majority Union. It is further stated that the two sources of selection for promotion was made keeping in mind the interests of the employees of the respondent. It is further pointed out that the petitioner was offered promotion he having passed in the written test in 1985. However, he refused to accept the same. Under the subsequent settlement, he sought promotion only through the seniority channel. The respondents further pointed out that promotion is not an automatic one. Considering the settlement reached between the respondent and the employees realising the need for selecting the right persons to the higher cadre, given the challenge that the employer has to face in the changing scenario, merit certainly has a role to play. As regards the change in the procedure brought about in the settlement in 1986, the respondent stated that earlier to the settlement, an employee who had put in ten years of service was eligible under the seniority channel. However, due to the demands raised by the senior employees who were stagnating without promotion, a consensus was arrived at on 18.5.2001, increasing the eligibility criteria from 10 years to 18 years. The zone of consideration was increased from 1:2 to 1:4 so that the employees who had put in 18 years of service and above will have a chance. It is further stated that while the interview carried 50 marks, the balance 50 was allocated for educational qualification, confidential report, service, entrustment of duties or special assistant/stenographer. 40 of the vacancies alone was reserved for those coming through Process A and 60 allocation through Process B. The respondent states that the marks in the interview were recorded with ink pen and not in pencil; as such, the question of manipulation does not arise. He further stated that the qualifying service was increased to 18 years, considering the number of candidates with years of service and among the employees having more than 18 years, persons found to be comparatively efficient are selected. The respondent defended this selection as one based on the comparative merit of the candidates. Referring to the changes in the selection system from the earlier settlements right from 1978, the respondent submitted that keeping in mind the career opportunities created by a competitive environment and to meet the challenges, and also the huge number of senior employees, the respondent and the Union arrived at an agreement apportioning 40 of the vacancies on seniority channel and 60% of the vacancies with regular procedure for written test. It is further stated that the respondent follows the reservation policy as stipulated by the Government. As such, process A is neither arbitrary nor unconstitutional. The settlement is binding on all the employees irrespective of their affiliation to any Union. The respondents state that the challenge itself is the result of the petitioner not passing through the merit requirements, there is no arbitrariness writ large on the selection mode by Process A. The respondent submits that in view of the private and foreign banks entering the field and the diverse activities undertaken, interview plays an important role to identify the right personnel for further promotion. Given the length of service, the mere absence of an academic qualification should not defeat the meritorious candidates being considered for appointment to the higher post. In the circumstances, there is no arbitrariness warranting interference under Article 14 of the Constitution of India.

18. Mr.N.G.R.Prasad, learned counsel appearing for the respondent, submitted that the circular is the result of the settlement reached under Section 12(3) of the Industrial Disputes Act. Consequently, it is not possible to re-write a settlement arrived at under Section 12(3). Referring to the scope of Section 12(3) of the Industrial Disputes Act, he submitted that a settlement is presumed to be a fair one until it is set aside by a competent authority having jurisdiction. He pointed out that the settlement has been in vogue eversince 2001 and is proved to be a successful one; as such, it is not open to an individual to challenge the same. In this regard, he places reliance on the decision reported in (2000) 1 SCC 371 (NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN) and (1976) 4 SCC 736 (HERBERTSONS LTD. Vs. WORKMEN). He also questioned the locus standi of the petitioner as an individual to question the settlement. He also placed on the decision reported in (1994) 1 SCC 150 (ANZAR AHMAD Vs. STATE OF BIHAR). He submitted that by the attitude of this petitioner, the promotion of 200 persons had to be stayed and interview cancelled. After going through the various Clauses of the Settlement, learned counsel submitted that given the object of promotion by selection, no exception could be taken to the selection by two modes, one for those with experience above 18 years and those less than 18 years. In the background of the settlement arrived at, the petition is totally misconceived and hence, liable to be dismissed.

19. Mr.V.Prakash, learned senior counsel appearing for the petitioner, submitted that the issue is one of arbitrariness violating the protection under Article 14 of the Constitution, that the mere fact of settlement arrived at under Section 12(3) of the Industrial Disputes Act does not permit the same to be in violation of Article 14. He further submitted that promotional process is done year to year; as such, cause of action arises when promotion is considered every year. Learned counsel for the respondent submitted that 880 employees were issued with call letters to appear for interview.

20. Two questions arise for consideration, one as to the binding nature of the settlement reached under Section 12(3) of the Industrial Disputes Act and the other as to the question of arbitrariness in the Settlement reached, introducing an element of irrationality and unreasonableness, offending Article 14 of the Constitution of India. On the question of binding character of the settlement reached and the right of an individual to question the same either in his representative capacity as one belonging to a minority Union not governed under the settlement proceedings or in his individual capacity, we have already noted the law declared by the Supreme Court in the various decisions rendered in every aspect of the arguments projected by the learned counsel for the petitioner.

21. In the background of the law laid down by the Supreme Court, the respondent rightly questioned the locus standi of the petitioner herein as an individual claiming to belong to a minority Union not part of the settlement to question the settlement reached. When we look at the facts herein, it may be noted that a settlement was originally reached on 22.3.1978. A perusal of the settlement dated 22.3.1978 shows that the settlement itself was reached between the employer and All India Overseas Bank Employees' Union under Section 12(3) of the Industrial Disputes Act in the matter of promotion of employees in the Clerical and Subordinate Cadre of the bank. Again, on 28.7.1986, a settlement was reached in an industrial dispute between the Management and the workmen represented by the All India Overseas Bank Employees' Union in the matter of promotion from the Clerical Cadre to the Officer Cadre Junior Management Scale I. In respect of process A under the above settlement, written test was considered both for process A as well as for Process B. The requirement as to the years of service or criteria for Process A was maintained as it is. In the case of process B, a written test was contemplated in respect of those prescribed eligibility requirement of less than ten years. The settlement arrived at under Section 12(3) of the Industrial Disputes Act on 18.5.2001 between the Management and the workmen is now under challenge in W.P.No.11631 of 2005 in the matter of promotion from Clerical Cadre to Officer Cadre Junior Management Scale I. The short recital as part of the Memorandum of Settlement shows that with a view to meet the challenges in the changing banking scenario and to fulfil the aspirations of employees by providing adequate and planned fast track career opportunities, the existing policy was modified so as to achieve the object of quality human resources. The Memorandum of settlement provide for promotion by two processes, namely, by Process A and Process B. Process A was concerned about employees having completed 18 years of active service in Clerical Cadre. In the case of Process B, employees in Clerical Cadre not falling under Process A are considered for promotion. The difference between Process A and Process B is that while in the former there is a selection only by interview, in the latter, there is a written test in the place of interview. The marks are allotted under four categories for service, educational qualifications and other weightage for rural service etc. While in the case of Process A service is given greater weightage, in the case of Process B, educational qualification is given a greater weightage by allotting 65 marks as against 50 for service in Process A which really show that contrary to the assertion of the petitioner, service is given greater weightage and that interview alone does not, in any manner, tilt the scales of fairness to the disadvantage of the petitioner. In fact, it is the other way about. Considering the object of giving greater weightage to the service put in and the demands of these persons with comparatively lesser qualification and greater service, the claim of the petitioner does not merit acceptance.

22. It is an admitted fact that a candidate having completed 18 years of service, instead of opting for process A, can yet go for selection under process B. The choice is entirely left to the concerned individual. In the face of this option, the petitioner herein went in for process B. Having thus opted for process B, the contention that process A interview has an element of arbitrariness and uncertainty over process B in view of the selection purely by interview as against the written test, cannot be accepted, quite apart from the reason that the selection to the post by the processes is agreed to under a settlement reached in terms of Section 12(3) of the Industrial Disputes Act, and this Court does not sit as an appellate Court to dissect the settlement to go for a pathological analysis. Given the nature of settlement and the purport and importance of the settlement reached under Section 12(3), I reject this plea of the petitioner. Even on merits of the submission, I do not find any justification that there is an element of uncertainty and arbitrariness solely by reason of the petitioner not succeeding in the selection process.

23. Learned senior counsel appearing for the petitioner submitted that unless and until the reasonableness of this method through process A is established, the same cannot be upheld by any norms. In this connection, learned counsel placed reliance on the decision of the Supreme Court reported in AIR 1958 SC 538 (RAM KRISHNA DALMIA Vs. JUSTICE TENDOLKAR) and submitted that the classification is irrational, given the fact that the selection is going to be from the same cadre to the another similar cadre. He laid particular emphasis on the fact that there is likelihood of an abuse and the classification lacks intelligible differentia with a nexus shown to the object.

24. The decision of the Supreme Court reported in AIR 1958 SC 538 (RAM KRISHNA DALMIA Vs. JUSTICE TENDOLKAR) sums up the principles on which the challenge under Article 14 of the Constitution can rest. The scope and content of Article 14 has been discussed in innumerable decisions of Apex Court. The essence of Article 14 is that it forbids discrimination and inequality in treatment of men and matters. Dealing with the scope of Article 14, in the decision reported in (1994) 6 SCC 349 (GAURI SHANKER Vs. UNION OF INDIA), the Supreme Court held that "it is settled law that in giving effect to the salutary principle, a mathematical precision is not envisaged and there should be no fanatical or doctrinaire or wooden approach to the matter. A practical and realistic approach should be adopted." The Supreme Court also referred to the decision reported in AIR 1958 SC 538 (RAM KRISHNA DALMIA Vs. JUSTICE TENDOLKAR) and held that the classification has to be founded on different bases, namely, geographical, or according to the objects or occupations or the like, and what is necessary is that there should be a nexus between the basis of classification and the object of the Act under consideration. The Supreme Court, in the said case, held that in determining the vaildity, the Court has to examine whether the classification must be found on an intelligible diferentia which distinguishes persons or things that are grouped together from others left out of the group and that the said differentia must have a rational relation to the object sought to be achieved by the statute.

25. While dealing with the contention of the petitioner that the settlement has to be tested on the touchstone of Article 14, it must not be forgotten that we are concerned about the settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947. While there cannot be any two opinion that in matters of promotion by selection, there could be no room for an arbitrary exercise, yet, at the same time, it must be remembered that the terms of the settlement are not to be tested strictly by the standards of Article 14 as are normally applied while reviewing either an executive order or legislative provision; lest, both the significance of a Settlement under Section 12(3) of the Industrial Disputes Act, 1947 and the relevancy of Article 14 would lose its identity and relevancy as recognised in their respective fields and as recognised in the law laid down by the Supreme Court in various decisions.

26. If a legislative provision or an executive order of general application does not become unconstitutional merely because in the actual application it turns out to be disadvantageous or inequitable to certain individuals,no grievance of whatsoever nature couldbe raised on grounds of disadvantage or inequity in a matter relating to a settlement reached bya conciliation process under the provisions of the Industrial Disputes Act, 1947. A term of settlement does not become bad or obnoxious to Article 14 merely by reason of the fact that the criteria of one process is not extended or followed under another process. In a matter concerning the Settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947, the endeavour before the Court is not to review the merits of the decision or even the decision making process unless there are serious allegations as regards the lack of bona fides or corrupt practices entering into the Settlement. In the absence of any material or allegation attributing oblique motive based on concrete materials, a settlement reached should be prima facie presumed to be in the interests of the employees. It must be remembered that this Court is not a Court of appeal to get into the merits of the settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947, to sit as a Super Conciliation Officer to substitute its judgment by indulging in an examination of the clauses of settlement. The petitioner's challenge is as regards only one portion of the settlement, which challenge, as per the law declared by the Supreme Court, is totally unsustainable. As already seen, the relevancy of Article 14, hence, cannot be stretched out of proportion to examine the reasonableness of a settlement arrived at under Section 12(3) of the Industrial Disputes Act, 1947. In any event, this process of selection agreed to in the settlement out of the anxiety to satisfy the demands of a huge backlog of employees in the Clerical Cadre, who, by the years of service put in, but not backed up by the educational criteria, need to be considered as a class by themselves. Hence, the question of testing the settlement reached under Section 12(3) of the Industrial Disputes Act on the touchstone of Article 14 appears to be rather irrational. The exigencies of the parties agreeing on the terms of settlement needs to be understood in the background of facts leading to the settlement.

27. Considering all the aspects, I am unable to see any ground for granting the prayer. Given the binding nature of the settlement reached under Section 12(3) of the Industrial Disputes Act, 1947, in the absence of any substantiated allegation of corrupt practices or mala fides writ large in the matter of settlement, the request for testing the settlement on the principles governing Article 14, is totally misconceived. In any event, be it on grounds of facts or on principles of law, I do not find any merit to grant the relief as prayed for. Hence the writ petition is dismissed. There will, however, be no order as to costs. Connected M.P.Nos.1 to 3 of 2007 are closed. ksv

To:

The General Manager

Personal Administration Department

Indian Overseas Bank

Central Office

Chennai-2.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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