Amar Singh vs U.P.Cooperative Bank Ltd.and Others

K.S. Rakhra, J.—The petitioner who is working as an Assistant in the U.P. Cooperative Bank Ltd. (hereinafter referred to as ''the Bank'') is seeking promotion to category1 post of Assistant Manager in the Bank. Through this writ petition he is challenging the order dated 29.3.2005 (Annexure1 to the writ petition) passed by the Managing Director of the Bank whereby he rejected the representation dated 5.1.2005 and 7.2.2005 of the petitioner claiming promotion as Assistant Manager of the Bank.

Admittedly the Bank is a registered Cooperative Society registered under Rule 2(a4) of U.P. Cooperative Societies Act, 1965. Services of its employees are governed by the provisions of U.P. Cooperative Societies Employees Service Regulation, 1975 (hereinafter referred to as ''Service Regulations, 1975''). These service regulations fall within the purview of Uttar Pradesh Cooperative Institutional Service Board. The Board exercising power under subsection 1 of Section 122 of Uttar Pradesh Cooperative Societies Act, 1965, with the approval of Governor of the State made amendment in the Service Regulations, 1975. These amendments know as Uttar Pradesh Cooperative Societies Employees Service (Eleventh Amendment) Regulation, 2004 came into force with effect from 30.10.2004.

The amendments by which we are concerned in the present writ petition relate to Regulation 27 which deals with the source of recruitment. The old and the amended Regulation27 are juxtaposed below for ready reference.

Existing Regulation

Source of Recruitment.

27(i) Recruitment to various grades or categories of posts under a Cooperative Society shall as far as possible be so arranged that 25 percent of posts in category 1.50 percent of posts in category II and 80 percent of posts in category III are held by persons recruited directly and the remaining posts in the said categories are held by persons appointed by promotion from amongst incumbents of the post in the just below grade or category.

Provided that the employees in (category IV shall be considered for promotion to posts in the lowest scale of pay in category III to the extent of 20 percent of the sanctioned strength of posts in that category.

(ii) Appointment to posts in category IV except the post of Daftary, Jamadar etc., carrying a highest scale of pay shall be made by direct recruitment while the said post of Daftary Jamadar etc. carrying a higher scale of pay shall all be filled in by promotion from amongst employees working in the lowest scale of pay in that category.

(iii) Promotion to the posts under a Cooperative Society whether from one grade to another within the same category of posts or one category of posts to another category shall all be made on the principle of seniority subject to the rejection of the unfit and an employee shall not be eligible for promotion to the next higher grade or category unless he has put in continuous service for a minimum period of three years in the post held by him;

Provided that the employees in category IV shall be considered for promotion to post in category III under the provision to clause (i) only after they have put in continuous service in their posts for a minimum period of five years and have passed the Intermediate or equivalent examination of the Board of High School and Intermediate Education, Uttar Pradesh or any other examination recognized by the State Government or equipment thereto.

Regulation as hereby amended,

Source of Recruitment

27(i) Recruitment to various grades or categories of posts under a Cooperative Society shall as far as possible be so arranged that 25 percent of posts in category 1.50 percent of posts in category II and 80 percent of posts in category III are held by persons recruited directly and the remaining posts in the said categories are held by persons appointed by promotion from amongst incumbents of the post in the just below grade or category.

Provided that the employees in (category IV shall be considered for promotion to posts in the lowest scale of pay in category III to the extent of 20 percent of the sanctioned strength of posts in that category.

Provided further that direct recruitment shall be made on lowest grade of category, the number of posts for direct recruitment shall be calculated against total sanctioned posts under different grades of that particular category.

(ii) Appointment to posts in category IV except the post of Daftry, Jamadar etc., carrying a highest scale of pay shall be made by direct recruitment while the said post of Daftary, Jamadar etc. carrying a higher scale of pay shall all be filled in by promotion from amongst employees working in the lowest scale of pay in that category.

(iii) An employee of a Cooperative Society shall not be eligible for promotion on the next higher grade or category unless he has put in continuous service for a minimum period of three years in the post held by him.

Promotion to the post under Cooperative Society whether from category II to category I or within the various grades of categoryI, shall be on the principle of merit. For the evaluation of merit character roll pertaining to preceding ten years shall be considered, wherein 3 marks for excellent. 2 marks for very good shall be given for each annual character roll entry and for had remarks and adverse entry negative marks shall be awarded and only those employees who have thus obtained 18 marks or more shall be considered for promotion in accordance with their seniority and reservation to the extent of vacant posts meant for promotion.

Provided that promotion in categories other than categoryI or within different grades or categoryI shall be done on the principle of seniority subject to the rejection of the unfit.

Provided further that under the provision of para (i) the employees in categoryIV shall be considered for promotion in categoryIII only if they have passed Intermediate examination of the Board of High School and Intermediate Education or any other examination recognized by the State Government as equivalent thereto.

(iv) An appointment by promotion in a Cooperative Society as provided in Regulation 5(1)(b) shall be done only with the prior approval of the Cooperative Institutional Service Board and for that purpose the Society shall submit all relevant information and records as required by the Board.

Provided that if there arises any doubt during the course of implementation of the regulation, the matter shall be referred to Board, whose decision shall be final conclusive and binding on the Society.

Thus clearly the criteria for promotion in accordance with clause 3 of Regulation27 (unamended) was seniority with a minimum service of three years in the post held by the employee, subject to rejection of unfit was by amendment altered from seniority to merit. The amended regulation also provides formula for determination of merit on the basis of character roll entries and marks earned on the basis thereof. Under the new rule it is necessary for promotion to categoryI post to have earned minimum of 18 marks on the basis of merit evaluation in accordance with amended rule.

The petitioner''s grievance is that he has outstanding career and service records and has put in 19 years service but he has not been promoted to categoryI post i.e. the post of Assistant Manager of the Bank although the persons junior as well as senior to him have been considered and promoted by the Bank to the said post.

Seeking redressal of his grievance he earlier filed Writ Petition No.1569(S/S)/2005 which was disposed of by this Court on 29.2.2005 whereby the Managing Director of the Bank was directed to consider and dispose of the representations dated 5.1.2005 and 7.2.2005 of the petitioner, by a reasoned and speaking orders. The Court had directed that if the petitioner was found qualified eligible and suitable for the post of Assistant Manager he may be considered for the same. By the impugned order dated 29.3.2005 (Annexure1 to he writ petition) the Managing Director of the Bank has rejected the representations of the petitioner as baseless. The impugned order shows that the petitioner''s claim to the categoryI post was rejected on the ground that evaluating his merit as per amended provisions of service Regulation 1975 he failed to secure minimum of 18 marks and was thus not qualified for promotion. There is no dispute that evaluating the merit and awarding mark as per amended provisions, the petitioner will get only 17 marks whereas minimum eligibility level in the amended rule is securing of 18 marks. Therefore juniors to him in his cadre have been given promotion as Assistant Manager as they had secured more than 18 marks in the above evaluation.

The contention which the petitioner is raising is that the vacancy of categoryI post i.e. Assistant Manager in the Bank, for him was available prior to 30.10.2004 when the service regulation amendment was notified. His case therefore ought to have been considered under the unamended provisions of Regulation 27 framed under Section 122(2) of U.P. Cooperative Societies Act 1965. The unamended Regulation 27 provides that 75% of the posts in categoryI were to be filled up by promotion while 25% were to be filed up by direct recruitment. Criteria for promotion was seniority subject to rejection of unfit with a rider that incumbent must have three years experience on the post held by him. The contention of the petitioner is that by applying provision of the amended Regulation 27 he has been deprived of promotion whereas his juniors have been given promotion on the basis of amended provisions. It may be mentioned here that in the Bank there is no categoryII post and therefore promotion to Assistant Manager post in categoryI has to be made from the posts of Assistants falling under categoryIII posts. Seniority list of Assistants in the Bank was finalized on 18.12.2004 whereafter the exercise for considering them for promotion to categoryI was taken up. Since in the meanwhile, on 30.10.2004 new Regulation was notified, the Bank took the view that it was obligatory for them to consider promotion in accordance with amended Regulation. The petitioner expressed his belief that vacancy against which he was due for consideration for promotion, existed prior to notification dated 30.10.2004. He has cited four names in paragraph 20 of this petition who were below him in the seniority list and who have been given promotion ignoring the petitioner claim. Admittedly the petitioner was confirmed as an assistant on 30.7.1986 with effect from 2.4.1986. He therefore claims seniority as an assistant with effect from 2.4.1986. In para 24 of the petition he has given instances of the persons who were confirmed as an assistant in the Bank subsequent to 2.4.1986 but were given promotion as Assistant Manager prior to Eleventh Amendment in the service Regulation. In addition to above the petitioner has alleged that his promotion was to be considered by the Departmental Promotion Committee and this has not been done.

Respondent Nos.1 to 4 through a joint counter affidavit admitted that the petitioner was confirmed as Assistant with effect from 2.4.1986. It was however contended by them that after finality of list on 18.12.2004 the promotion exercise was taken up and since amendment in the service regulation had been notified on 30.10.2004, the claim for promotion could be considered in accordance with amended provision and not in accordance with unamended provisions. 13 Assistants who fulfilled the criteria as per amended Regulation27 were selected on the basis of merit and were given promotion as Assistant Manager on 24.12.2004. The petitioner secured only 17 marks and therefore was ineligible for consideration as the amended Rule required the minimum of 18 marks for consideration for promotion. The Bank took the stand that seniority list finalized on 18.12.2004 was correctly prepared and the petitioner was rightly placed at serial No.231. The respondents did not dispute the claim of the petitioner that some vacancies had occurred in the category of Assistant Manager prior to amendment in service regulation on 30.10.2004. In para 31 of the counter affidavit they have stated that there is no dispute as to the vacancies. Had the petitioner fulfilled the eligibility criteria as laid down for promotion he would have been promoted. This could not be done because he did not fulfil the criteria for promotion. In para 33 the respondents have tried to justify the grant of promotion to the assistants junior to the petitioner on the ground of their fulfilling the merit and eligibility criteria as per amended regulations.

The petitioner filed rejoinder affidavit and asked the respondents to give yearwise break up of the vacancies in the category of Assistant Manager occurring from time to time. He reiterated that vacancy occurring prior to 30.10.2004 will be filed up only in accordance with unamended provisions of Regulation27.

The Bank in its supplementary counter affidavit laid emphasis on the fact that when the seniority list was finalized on 18.12.2004, the question of promotion was taken up and since amended Regulation came into force and therefore action was taken in the light of amended provisions. According to them five vacancies in the category of Assistant Manager had occurred prior to amendment in the Regulation whereas 8 vacancies had occurred on and after 24.12.2004. The second supplementary counter affidavit made it clear that they could not maintain yearwise break up of vacancies for promotion.

From the pleadings of the parties the question which arises for determination are:

Whether for the petitioner a vacancy was available in categoryI post of Assistant Manager prior to 30.10.2004?

If vacancy was available whether selection for promotion was to be made on the basis of unamended Regulation27 or was to be made in accordance with provisions of amended Regulation27 as has been done by the Bank while rejecting the representations of the petitioner.

Let us first consider the applicability of amended or unamended provisions contained in Regulation27 to the situation. Sri N.K. Seth, learned counsel for the respondent Bank contended that exercise for consideration for promotion to the post of Assistant Manager was taken up in December 2004 and 13 promotees of Assistant were made on 24.12.2004 to the post of Assistant Manager (categoryI). He has submitted that in accordance with Regulation4 read with Regulation5 of 1975 Service Regulation the Bank was supposed to provide reservation for candidates belonging to scheduled cast and scheduled tribes etc. at the time of direct recruitment as well as at the time of promotion of employees from one post to another. A writ petition No.362 (SB) of 1994 was filed by U.P. Cooperative Bank Officers Association through its General Secretary with a prayer to issue writ commanding the Bank to fill up the existing vacancies in categoryI from Assistant Manager upwards by way of promotion on the basis of seniority without providing any reservation on the above noted posts to ST & SC promotees. This Court on 13.4.1994 by an interim order restrained the Bank from providing reservation in promotion. The said writ petition was however dismissed on 4.9.2003 but the Bank came to know of it and procured copy of dismissal order on 19.8.2004. Under these circumstances on 18.9.2004 the Managing Director of the Bank constituted a four members committee to find out the number of posts for promotion in various grades and categories and to recommend the names of eligible employees of reserved category for promotion. Subsequently on 13.10.2004 this committee was required to make recommendation for general category officers as well. All these facts have been mentioned in supplementary counter affidavit filed by the respondents on 15.12.2005. Sri Seth further stated on the basis of said affidavit that on 27.5.2004 the Bank had issued tentative seniority list of class III employees from serial No.179 onwards inviting objections. After considering the objections a final seniority list of class III employees was issued by the Bank on 18.12.2004. Sri Seth argued that in these circumstances the promotion exercise could be taken up in December 2004. Further there was no fixed time schedule under the Rule for completing above formalities. Since in the meanwhile with effect from 30.10.2004 Service Regulations1975 were amended, therefore, the claim of the petitioner could be considered only in the light of amended provisions. Applying this provision, merit of the petitioner was evaluated and he could secure only 17 marks as against requirement of minimum of 18 marks as eligibility criteria for consideration for promotion. The argument of Sri Seth was that Rule applicable at the time of promotion would govern the promotion and old rule had no application.

According to Sri Seth the committee had assessed the vacancy in the light of amended provisions in Regulation27(1) of Service Regulation1975. On this calculation the committee had found only five vacancies in Assistant Manager Grade (categoryI) available to the quota of SC & ST candidates. However, consequent upon other promotion in other cadre 8 reserved posts vacancies be made available for promotion for Assistant Manager post in reserved category. Admittedly the Bank in conducting this exercise of promotion has promoted even those assistants who were junior to the petitioner on the ground that they were eligible for the promotion. Four such names are Ram Murat, Mithai Lal, Hari Shanker and Chandrika Prasad whose names are at serial Nos.282, 313, 346 and 397 in the final seniority list.

In support of his contention Sri Seth has placed reliance on the case of Union of India v. S.S. Uppal and another, 1996 (2) SCC 168. That was a case relating to determination of seniority. In that case Sri Uppal was an officer of the State Government. His name was included in the panel of candidates suitable for absorption in IAS cadre against quota of nonState Civil Service Officers under Rule 8(2) of IAS (Recruitment) Rules 1954. In accordance with the placement in the panel he was considered for the appointment against the vacancy which arose on 1.2.1989. Appointment was however made on 15.2.1989. In the mean time on 3.2.1989 the provisions of IAS (Regulation of Seniority) Rules1987 were amended. The question which arose for consideration was whether his seniority should have been determined under the Rules as in force at the time of his appointment to IAS or as in force at the time of occurrence of vacancy. The Apex Court found that seniority would be determined as per rule applicable on the date of appointment and not as per Rule applicable on the date of occurrence of vacancy. The Apex Court also found that the fixation of seniority is done only after an officer is appointed to IAS and therefore date of occurrence of vacancy has no relevance for the purpose of fixation of seniority. After going through the said case report I agree with Sri D.K. Upadhyay, learned counsel for the petitioner that Uppal''s case has no relevance to the facts before us. The question of seniority would only relate back to the date of appointment and it can not be related to the date of vacancy because question of seniority would arise only when the appointment is made.

Sri Seth has also placed reliance on the case of Rajasthan Public Service Commission v. Charan Ram, 1998 Legal Eagle 255. That was a case where advertisement for appointment for the post of Assistant Director (Junior) was issued. Before selection process could complete the Ruels were amended and the post advertised was abolished and new posts of Marketing Officers were created for which fresh advertisement was issued. The earlier advertisement became infructuous. In those circumstances the Apex Court held that the candidates who made application under earlier advertisement can not insist that earlier recruitment process should continue. The candidates who appeared in and passed written examination for appointment only claim legitimate expectation to be considered for appointment. No right is created for such candidates prior to appointment. The Governor had right to abolish the post. In my opinion this case has no application to the controversy before us. Similarly the decision in the case of State of Uttaranchal v. Dinesh Kumar Sharma, reported at page 1 Volume 10 of Latest Judgment has no application to the facts before us because the said case is an authority on the point that promotion and seniority shall be reckoned from the date of appointment and not from the date when vacancy arose.

As against this, learned counsel for the petitioner has placed reliance on several cases in support of his contention that when the vacancy for promotion occurred it has to be filled up in accordance with Rules applicable to the time of occurrence of vacancy. The first case on which he placed reliance was Y.V. Rangaiah and Others v. J. Srinivasa Rao and Others, 1983 (3) SCC 284. That was a case where lower division along with upper division clerk were jointly entitled to be considered for promotional post. Panel for promotion could not be prepared within the stipulated time and in the mean while Rules were amended depriving the lower division clerk from consideration of promotion to the said post. Promotional chances of lower division clerks were adversely affected and they were superseded by their juniors in the panel prepared in accordance with amended Rules. The Apex Court setting aside this held that vacancies in promotional post occurring prior to the amendment have to be filled up in accordance with unamended Ruels.

The aforesaid Rangaiah case was followed by this Court in Achchan Miyan v. State of U.P. and Others, 2003 (21) LCD 982. The Apex Court in the case of B.L.Gupta and another v. MCD, 1998 (9) SCC 223, followed Rangaiah case and held that the vacancy which had occurred prior to amendment of rule would be governed by old Rules and not by amended Rules. Similar view was taken in the case of N.T. Devin Katti and Others v. Karnataka Public Service Commission, 1990 (3) SCC 157. Similar view was taken in the case of P. Murugesan and Others v. State of Tamilnadu, 1993 (2) SCC 340. Again in the case of P. Ganeshwara Rao v. State of A.P., 1988 (Suppl) SCC 740 there was Rule prescribing 35% of total number of vacancies both substantive and temporary for direct recruitment. This was amended by providing that only substantive vacancy to the said extent arisen in the cadre shall be filled up by direct recruitment. The Apex Court held that amendment applied prospectively and the vacancy both substantive and temporary arisen earlier would not be affected and would be governed by old Rule. In the case of P. Mahendra and Others v. State of Karnataka, 1990 (1) SCC 411 also the rules regarding qualifications for appointment were amended during the continuance of process of selection. The process was subsequently completed under the old Rules and the select list was finalized. The Apex Court held that such a list was not vitiated by the said amendment of Rules.

Thus from series of cases mentioned above it is clear that in case of a vacancy for promotion, the rules applicable at the time of occurrence of vacancy would be applicable and not the Rules applicable on the date of filing up of the vacancy. I, therefore, do not agree with the contention of Sri Seth that since Service Regulation1975 was amended with effect from 30.10.2004, the selection process which was commenced or completed thereafter would be governed by amended Regulations. I conclude it and hold that vacancies which occurred prior to amendment in the Regulation would be governed and filled up in accordance with unamended Rules applying criteria of eligibility and determination of entitlement in accordance with seniority subject to rejection of unfit. The amended Rules would apply only to the vacancies which occurred after the amendment in the Regulation.

In the case of the petitioner the Bank has not determined whether a vacancy for him for promotion as Assistant Manager occurred prior to 30.10.2004 or subsequently. In fact vacancies were not determined yearwise. The Bank has applied amended Regulation27 to all the vacancies which were required to be filed up in December 2004. Since there is significant change in the process of selection for promotion, applying wrong rule has caused prejudice and failure of justice to the present petitioner. It may be mentioned here again that the Regulation27(3) of the unamended Service Regulation, 1975 provided that the promotion shall be made on the principle of seniority subject to rejection of unfit. It was qualified by an eligibility clause which provided that an employee to be fit for consideration for promotion must have put in a minimum of three years continuous service in the post held by him. Against this the amended provisions provided that promotion to the categoryI or within various grades of categoryI shall be on the principle of merit. For the evaluation of merit, character roll pertaining to preceding 10 years shall be considered wherein 3 marks for excellent, 2 marks of very good shall be given for reach annual character roll entry and for bad remark of adverse entry negative marks shall be awarded and only those employees who have obtained 18 marks shall be considered for promotion in accordance with their seniority and reservation.

As mentioned earlier employees junior to the petitioner have been promoted and the petitioner has been left out on the ground that on determining his merit in accordance with amended Regulation27 he could secure only 17 marks which was less than minimum 18 marks required to make an employee eligible for consideration.

This Court during the pendency of writ petition directed the respondents to give yearwise break up of the vacancies required to be filled up. They have given information through affidavit filed on behalf of opposite party Nos.1 and 2 on 10.7.2006. 20 vacancies are shown to have occurred in the year 2004 prior to the amendment made in Regulation 27 on 30.10.2004. Clearly these vacancies were to be filed up as per unamended Regulation and the petitioner was entitled to be considered for promotion in accordance therewith.

In the light of observation made above, the impugned order dated 29.3.2005 passed by Managing Director, U.P. Cooperative Bank Ltd. (Annexure1 to the writ petition) can not be sustained. The order has been passed on misinterpretation of Rules applying wrong procedure and standard and it has caused serious prejudice to the claim of the petitioner. The said order is, therefore, quashed.

The respondents are directed to consider the case of the petitioner for promotion on the post of Assistant Manager in accordance with unamended Service Regulation27 and if he is found fit grant him promotion positively within three months from this order. It is further provided that in case the petitioner is promoted to the post of Assistant Manager in categoryI his seniority in the aforesaid category shall be fixed as if he was promoted on the same date when his juniors were promoted and he shall also be given all promotional benefits with effect from the same date. Respondents should also consider and pass appropriate order in accordance with Rule with regard to petitioner''s contention that some of the assistants namely Sankatha Prasad Singh and Dinesh Ratan Singh who were confirmed subsequent to the confirmation of the petitioner as assistant were placed in the seniority list above the petitioner. Respondents shall also pass speaking order with regard to this also.

The writ petition is allowed with costs in the light of directions given above.

(Petition allowed)