Canara Bank vs Sri Surendra Prabhu K.

A.S. Bopanna, J.—The appellant is before this Court claiming to be aggrieved by the order dated 7.4.2003 passed by the learned Single Judge in Writ petition No. 4964/00 (S). By the said order the learned Single Judge has allowed the Writ Petition of the respondent herein, in part and the impugned Annexure-Z dated 31.12.1989 intimating the respondent herein that the appellate authority has not considered the appeal relating to grant of promotion to the respondent to the post of SMGSC IV, was set aside. Further the learned Single Judge has directed the appellant Bank to reconsider the case of the respondent herein in the manner indicated in the order.

Sri B.S. Shankarnarayan, learned Counsel appearing for the appellant Bank while assailing the order would contend that the learned Single Judge was not justified in coming to the conclusion that the process of consideration of the case of the respondent for promotion from Middle Management Grade Scale III to Scale IV was vitiated since Sri T.R. Sridharan, the then Chairman and Managing Director and Sri M.V. Kamath, the then General Manager Personnel wing had participated in the Departmental Promotion Committee (DPC). The learned Single Judge was not justified in coming to such a conclusion merely because the said persons were arrayed as respondents to a Civil Contempt Petition which had been filed by the respondent with regard to the non-grant of promotion to the earlier scale i.e., Scale II to Scale III in the circumstance of the punishment which had been imposed on the respondent herein. It is contended that the process of promotion from grade III to Grade IV was conducted in accordance with the procedure laid down under the Canara Bank (Officers) Service Regulations, 1979 (for short ''regulations''). Chapter IV of the said regulations and more particularly Regulation No. 14 read with Annexure-5 would lay down the procedure and the Constitution of the DPC. Item No. 3 of Annexure-5 would indicate the constitution of the DPC which would provide for the Chairman or Managing Director, the Executive Director and two General Managers to be a part of the DPC for promotion from Scale III to Scale IV. The normal procedure followed for constitution of such a committee had been followed in the present case also, and the committee constituted as per the provision included the Chairman and Managing Director and also the General Managers. Even such a committee constituted had merely approved the list which had been prepared by the committee consisting of Deputy General Managers who had appraised the performance by awarding marks keeping in view the qualification, performance for last three years and ability. In such assessment the respondent had secured 75.65 marks in total and the DPC had only taken note of such list and thereafter approved the promotion. According to the learned Counsel, the respondent was way below in the ranking list at No. 192 as against 55 vacancies available. Therefore in the normal course the respondent was not entitled to promotion and as such the learned Single Judge was not justified in holding that the promotion has been denied merely because the Chairman and Managing Director and one of the General Managers were respondents in the Contempt proceedings. Though the learned Single Judge has relied on the decision of the Hon''ble Supreme Court in the case of V. Mahadevan and others Vs. D.C. Aggarwal, , the said decision would not be applicable to the facts of the present case since the DPC itself has not evaluated and awarded marks but has only taken into consideration the list which had already been prepared and placed before it for approval. Further in the instant case the contempt proceedings was with regard to the earlier promotion and not relating to the promotion from Scale III to Scale IV and as such no bias can be imputed. Though an appeal had been filed by the respondent as per departmental procedure, the same was considered and since the respondent was not entitled to promotion, the impugned Annexure �Z had been issued and as such there was no infirmity whatsoever which called for interference by the learned Single Judge. In any event, the respondent having participated in the process of consideration for promotion, cannot now complain of infirmity in the constitution of the DPC merely because he was not successful.

Per contra Sri M.N. Prasanna, learned Counsel for the respondent not only sought to justify the order passed by the learned Single Judge, but also pointed out the circumstances leading to such a view that bias can be inferred from the attendant circumstances which has also been noticed by the learned Single Judge. The learned Counsel would submit that the contempt proceeding had been initiated by the respondent by arraying Sri T.R. Sridharan, the then Chairman and Managing Director and Sri M.V. Kamath, General Manager, in person, as respondents since the promotions including to Scale IV, to which the respondent was entitled to on the earlier disciplinary proceedings being set at naught had not been implemented. In the contempt proceedings itself, the said Sri T.R. Sridharan and Sri M.V. Kamath who were respondents to the contempt petition had filed their statement contending that the respondent herein is not entitled to promotion. Though, ultimately the promotion from scale II to III was restored and the contempt petition was closed, the fact that they were against the promotion of the respondent herein would not get erased. It is during the pendency of the contempt petition that the process of consideration for promotion from scale III to Scale IV was undertaken wherein the case of the respondent was considered and the process was also concluded during the pendency of the contempt petition by issue of communication to the respondent dated 7.9.1998 intimating that promotion has not been accorded. The contempt petition though was dropped by order dated 9.9.1998 in view of the compliance of the order passed in the writ appeal, the liberty to challenge the legality of the communication dated 7.9.1998 was reserved. The very fact that the entire process of consideration regarding promotion from scale III to Scale IV was initiated and concluded during the pendency of the contempt petition and since the said two persons were respondents to the contempt petition as well as the members of the DPC, the same has definitely prejudiced the case of the respondent. It is exactly in this context that the Hon''ble Supreme Court in the cited decision of V. Mahadevan''s case had held that such highly placed Officers should withdraw themselves from such committees in such a situation and the said decision being applicable to the present case, the learned Single Judge has aptly applied the same. The learned Counsel would further contend that at no point of time during the process of consideration for promotion, the respondent was aware of the persons constituting the DPC and in any event, it is not as if the respondent had appeared before the committee and therefore it cannot be contended that the respondent having participated cannot question the same on being unsuccessful. It is further contended that even though the appellants contend that the list had been prepared by a separate committee consisting of Deputy General Managers the very manner of awarding of Marks would indicate that the same had been manipulated to achieve the end result of denial of promotion by the DPC to which the said two persons were members, who had overall control from the stage of the constitution of the committee itself. According to the learned Counsel, the respondent had been graded ''excellent'' during the previous years but, contrary to the same and very surprisingly only 27.15 marks out of 45 has been allotted on the head ''ability'' when there was no complaint whatsoever. According to the learned Counsel even though the respondent was entitled to promotion to scale IV from an earlier date itself, the same has been limited to from the year 1998 and in any event, the learned Single Judge has not set aside the promotions granted to the other promotees but has only directed reconsideration of the case of the respondent by an appropriate committee and considering the fact that the respondent has already retired from service with effect from 31.5.2001, all that the respondent would be entitled to is monetary benefits and as such even if viewed from that angle, the order of the learned Single Judge is liable to be sustained.

The decisions cited by the learned Counsel for both the parties in justification of their contentions would be referred to by us at the appropriate place depending on the relevance of the same.

In the light of the contentions urged by the respective learned Counsel and in order to address the same, at the outset it is necessary to notice the undisputed facts involved in the present case. The respondent herein joined the service of the appellant Bank on 3.7.1959. The respondent was thereafter promoted on 16.4.1975 to Routine Officer Grade III and subsequently placed in the Middle Management Grade Scale II after the Canara Bank Officers Service Regulations came into effect. On 29.4.1978 a charge-sheet is said to have been issued to the respondent alleging certain misconduct, which after holding an inquiry is said to have resulted in punishment. Accordingly, by the punishment awarded on 3.10.1981, the respondent was reverted from middle management Grade Scale II to Junior management Grade Scale I. Thereafter the respondent was promoted to Grade Scale II on 1.1.1982. It is to be noted here that but for the punishment, the said promotion would have been to Grade Scale III in normal course. The respondent questioned the imposition of the punishment by the disciplinary authority by filing a petition before this Court in W.P. No. 18759/84 which came to be dismissed on 6.4.1995. The respondent herein preferred an appeal in W.A. No. 2304/95 before a Division Bench of this Court. This Court by order dated 4.7.1997 allowed the appeal, set aside the order of the learned Single Judge and quashed the order imposing punishment on the respondent herein and directed that the consequential benefits which flow from the order shall be given effect to by the appellant herein within a period of three months. The SLP filed by the appellant herein before the Hon''ble Supreme Court was dismissed on 20.3.1998. Despite the same since the order passed in W.A. No. 2304/1995 had not been complied by the appellant herein, the respondent had to institute the contempt petition in CCC No. 2365/1997. To the said contempt petition, Sri T.R. Sridharan, Chairman and Managing Director was impleaded as first respondent, while Sri M.V. Kamath General Manager was impleaded as the second respondent. During the pendency of the contempt petition, though the contemnors to the contempt petition had contended that the respondent herein is not entitled to promotion, ultimately, promoted the respondent from Grade Scale II to Grade Scale III with effect from 1.1.1982. However, in so far as the promotion to Grade Scale IV, it was stated that the DPC would consider the same and ultimately by communication dated 7.9.1998 intimated that the respondent herein is not entitled to the same, Noticing these developments the contempt petition no doubt came to be disposed of on 9.9.1998 indicating that the denial of promotion to Grade Scale IV could be agitated by the respondent herein separately. In that context, the respondent herein filed the petition in W.P. No. 4964/00 and the order passed in favour of the respondent is the subject matter of this appeal.

With these undisputed facts in the backstage, the main dispute to be considered is as to whether the denial of promotion to the respondent herein by the DPC to which the said Sri T.R. Sridharan and Sri M.V. Kamath were parties can be construed as inappropriate since the said persons were arrayed as alleged contemnors in the contempt petition which had been filed by the respondent herein, more particularly, when the process of consideration for promotion and the consideration of the contempt petition wherein the subject matter was also relating to promotion, were proceeding simultaneously and in that background whether the learned Single Judge was justified in passing the order impugned. This also has to be viewed from the stand point that even though the respondent herein in the present petition had sought for promotion to Scale IV with effect from 1998, the claim initially was that it was also a consequential relief in view of his success in W.A. No. 2304/1995 and had claimed it with effect from 1988 and therefore was a part of the claim in the contempt petition but has been limited in the present petition to claim from 1998 since more than 500 persons had been promoted between 1988 to 1997 and the challenge to the same would not be practical.

In this backdrop, firstly it is necessary to consider the contention of the learned Counsel for the appellant as to whether the respondent herein could have made out a grievance regarding Sri T.R. Sridharan and Sri M.V. Kamath being apart of the DPC when the respondent herein had participated in the process of promotion. No doubt, in the decision relied on by the learned Counsel for the appellant, in the case of J. Pattabhiraman v. Murugavel and Ors. 2000 LAB 1.C. 95 and in the case of Mrs. Bharathi Krishna v. Vice Chancellor, Banaras Hindu University, Varanasi 2000 LAB 1.C. 428 rendered by the Division Bench of the Madras High Court and the Allahabad High Court respectively the principle that a person having appeared and participated in the selection process cannot turn round and challenge the constitution of the committee is reiterated. This principle of decrying the conduct of approbation and reprobation is now well settled even by the Hon''ble Supreme Court. But, in the instant case, the moot question is as to whether the respondent herein was aware that the said two persons were part of the DPC and whether the respondent had appeared before the committee and participated even after knowing that the said two persons were a part of the committee. Further the question would be whether in the circumstances, as observed by the Hon''ble Supreme Court in the case of V. Mahadevan, the Officers who are highly placed should themselves have withdrawn from such committee instead of contending that the respondent had taken part in the process despite knowing that they were in the committee.

In this regard, the very contention put forth on behalf of the appellant that a separate committee consisting of Deputy General Managers had assessed the appraisals and performance and had allocated marks and that the DPC had merely noticed the same only for the purpose of approval would indicate that at the first instance when the respondent herein submitted his self appraisals for the purpose of consideration he was not aware as to who were part of the DPC. Even otherwise, the letter dated 13.10.1998 addressed by the respondent herein which is at Annexure-S would indicate that after communication to the respondent that he is not entitled to promotion, the respondent herein, in preparation of his appeal against non-promotion had sought for information regarding the names of the persons who were part of the DPC and in reply to the same, the communication dated 4.12.1998 at Annexure-T was addressed on behalf of the appellant Bank to the respondent expressing their unwillingness and inability to furnish the names of the persons who were part of the DPC. The very reply issued on behalf of the appellant herein would indicate that they do not even allege that the respondent herein is aware of the persons who were part of the committee keeping in view the Regulations for the said purpose, but on the other hand they have categorically stated that the names cannot be furnished which would clearly indicate that the respondent at the outset was not aware as to who were the persons that formed the DPC. Therefore, the contention on behalf of the appellant that the respondent herein having participated despite knowing who were in the DPC, cannot question the same is not sustainable nor would the decisions cited in this regard come to their aid.

Having considered this aspect of the matter and having already noticed that one of the undisputed facts is that the contempt proceedings were pending before this Court when the process of DPC was in progress, the fall out of the same is to be considered more particularly when in the contempt proceedings, the respondents therein who are also the members of the DPC had taken up the contention that the respondent herein is not entitled to promotion. Though the learned Counsel for the appellant contends that the subject matter in the contempt petition was with regard to the grant of promotion to Grade III in view of the restoration of status since the disciplinary proceedings had been set aside and the issue was not relating to promotion from Grade III to Grade IV, the said contention cannot be accepted in its entirety since the respondent herein was in fact agitating with regard to scale IV as well. As noticed, at that stage, the respondent herein was claiming with regard to his entitlement to Scale IV from 1988 since his promotion to Scale III was to be restored with effect from 1.1.1982 and the reason for restricting his claim from 1998 at this juncture is also pleaded in the Writ Petition. Further the fact that the respondent herein had claimed for promotion to Scale IV as well during the pendency of the contempt proceedings is demonstrated by the communication dated 16.4.1998 addressed to the respondent herein on behalf of the appellant/Bank which is at Annexure-B. In the said communication, the respondent has been informed that it has been decided to release his promotion to MMG Scale III with effect from 1.1.1982 and the respondent has been further informed that his claim for placement in the higher cadres i.e., SMG Scale IV and above would be placed before the DPC. This would indicate that at the first instance the appellant Bank through the alleged contemnors to the contempt petition had taken up the plea that the respondent herein was not entitled to promotion to any of the Scales but, had ultimately granted the promotion to Scale III but the Scale IV promotion was stated to be considered by the DPC. When this was the position, on the face of it when Sri T.R. Sridharan and Sri M.V. Kamath were made parties to the contempt petition by name and when they had taken up a contention that the respondent herein is not entitled to promotion, more particularly at an initial stage when it was contended that he is not entitled even to Scale III and if the same persons form a part of the DPC which has denied promotion to the respondent to Scale IV, the natural consequence would be that it cannot inspire confidence in any person that it has been done in a fair manner. Even though the Bank contends that the assignment of marks had been done by a separate committee, the fact that by such time, the DPC and the said 1 committee had been constituted with the approval of the very same Chairman and Managing Director and that the said two persons would have the control of the entire promotion process is not difficult to imagine and visualise in such a situation, that too, in a circumstance where the respondent who had been graded as ''excellent'' being awarded only 27.15 marks towards ability when his performance has been assessed highly.

The learned Counsel for the respondent has relied on the decision of the Hon''ble Supreme Court in the case of S. Parthasarthi Vs. State of Andhra Pradesh, with particular reference to paragraph Nos. 14, 15 and 16 to indicate that the test of likelihood of bias is based on reasonable apprehension of a reasonable man fully cognizant of the facts. On this aspect, the learned Counsel for the respondent has also relied on a decision of the Division Bench of Calcutta High Court in the case of Union of India and Ors. v. S.N. Chatterjee and Ors. 1981 (2) SLR 730 Though at the outset the entire facts of the present case would point out that the reasonable apprehension of the respondent herein cannot be ruled out and further in a normal circumstance, though we would have liked to dwell into a deeper consideration with regard to ''bias'' and ''prejudice'', in the present case, considering the fact that the Hon''ble Supreme Court in the case of V. Mahadevan and others Vs. D.C. Aggarwal, has expressed that even without imputing bias, in certain circumstances, it would not be fair or proper for such highly placed officials to be a part of the committee, in that view such an exercise would not be necessary since the situation in the case decided by the Hon''ble Supreme Court and the instant case are almost identical. Yet another aspect is that even the contention that DPC has done nothing except approving the list prepared by the committee of Deputy General Manager also cannot be accepted since that would mean non-application of mind to the entire promotion process which is not desirable. In this context, it is also necessary to find out as to whether in the instant case it could have been possible for Sri T.R. Sridharan and Sri M.V. Kamath to have withdrawn themselves. In the instant case, Annexure-5 to the Regulation of the Service Regulations relied on by the learned Counsel for the appellant would read as follows:

_________________________________________________________________________ | For Promotion from Committee comprising | |________________________________________________________________________| | 3. Middle Management Grade The Chairman & Managing | | Scale III to Senior Management Director or the Executive | | Grade Scale IV Director, two General | | Managers or, in the | | absence of the second | | General Manager, a | | Deputy General Manager | |________________________________________________________________________|

A perusal of the same would indicate that the committee should consist of the Chairman and Managing Director or the Executive Director, two General Managers or in the absence of the second General Manager, a Deputy General Manager. The constitution of the committee is ultimately approved by the Chairman and the Managing Director as indicated by the ''note'' sheet made available by the learned Counsel for the appellant. The constitution of the DPC was by proceedings dated 16.6.1998 and the DPC was constituted on 25.6.1998 by the CMD wherein he himself, the Executive Director, Sri M.V. Kamath, GM (Personnel) and Sri A.K.S. Rao, GM (Co-op. Credit) were members. At that stage, the Chairman and Managing Director being himself a respondent to the contempt petition was aware that the case of the respondent herein also would be considered by DPC considering the stand taken by him. Hence, the constitution of the committee should have been done in such a manner excluding himself and Sri M.V. Kamath so as to avoid the allegation of bias and make it appear fair. A perusal of the regulation extracted above would indicate that even without the Chairman and Managing Director i.e., Sri T.R. Sridharan and the General Manager Sri M.V. Kamath not being a part of the DPC an appropriate DPC could have been constituted consisting of Executive Director and in the absence of one of the General Managers, a Deputy General Manager could have been in the committee which would have been a DPC as per Regulations without any infirmity. Therefore the Chairman and Managing Director being a highly placed official in all propriety should have chosen to constitute such a DPC, more particularly when they were aware of the rival contentions which were being urged in the contempt petition and also in view of the communication dated 16.4.1998 to the respondent herein stating that his claim for placement in the SMG Scale IV is being placed before the DPC. In this background, the view expressed by the Hon''ble Supreme Court in para 3 of the V. Mahadevan and others Vs. D.C. Aggarwal, is noticed once over again and the same would read as follows:

Long arguments were advanced both on behalf of appellants and respondent. Maintainability of the appeal was also challenged. We do not propose to enter into any of these aspects as we are of opinion that in view of the statements made by learned Additional Solicitor General the continuance of contempt proceedings in the High Court would not be in interest of justice. Main grievance of the respondent that survives is for promotion. From the records produced by the Additional Solicitor General, we find that the committee which interviewed comprised of two of the persons against whom the respondent had filed contempt petition in the High Court. They are appellants in this Court. This, in our opinion, was neither proper nor fair. Those officers who are occupying very high position in the Bank in all propriety should have withdrawn from the committee constituted for this purpose. We may not be understood as imputing any bias to them. But in our opinion the principle of fairness required that they should have not sat on the board. For these reasons we decide these appeals by issuing following directions:

i) The statement of the learned Additional Solicitor General is accepted that no fresh enquiry shall be held against the respondent for the act or commission for which action was taken against him which resulted in reduction from rank in 1987. Notice dated 28th December, 1992 shall stand withdrawn.

ii) The State Bank of India shall reconsider the claim of promotion of the respondent to higher scale in accordance with rules. We do not express any opinion on the question if interview for higher scale is necessary and if there was any valid justification for not promoting the respondent whose record prior to these proceedings is unblemished but if under the policy framed by the Bank and followed in other cases constitution of a committee and interview is necessary then the committee be constituted but the Managing Director, State Bank of India, Central Office, Bombay and Managing Director (Personnel), State Bank of India, Central Office, Bombay who are appellants in this Court may not be its members.

iii) The committee shall be constituted within three weeks from today which shall decide if respondent was entitled to be promoted to higher scale in which his juniors are working as we are informed that the respondent is reaching his age of superannuation. In case the committee does not find the respondents suitable for promotion, it shall give reasons for the same.

In the said case, the Hon''ble Supreme Court has clearly stated that even though the Court should not be understood as imputing any bias to them, has expressed that the interview committee comprising of two persons against whom the respondent had filed contempt petition is neither fair nor proper and those Officers who are occupying very high position in the Bank in all propriety should have withdrawn from the committee constituted for this purpose.

As already noticed above, even from the regulation providing for constitution of DPC, the Chairman and Managing Director had the option of constituting a committee not comprising himself or Sri M.V. Kamath i.e., one of the General Managers and propriety demanded that when both of them were the respondents in the contempt petition in a similar situation as in the case dealt by the Hon''ble Supreme Court, it was incumbent upon them to have withdrawn from the committee at least to adapt a fair procedure. The decision relied on by the learned Counsel for the appellant in the case of Pankaj Sharma Vs. State of Jammu and Kashmir and Others, would be of no assistance since the facts therein are not akin to the facts on hand. In the said case, the question was with regard to the committee for selection process and as to whether there was infirmity in the situation arising therein, whereas in the instant case, the composition of the DPC in the background of the contempt proceeding and in that background the fairness of consideration is the core issue. In fact, the learned Single Judge has also noticed the original records relating to the promotion as we have also done at the time of the hearing of the appeal. On noticing the contentions put forth by the petitioner before the learned Single Judge, the learned Single Judge has placed reliance on the judgment of the Hon''ble Supreme Court in V. Mahadevan and others Vs. D.C. Aggarwal, and has thereafter come to the conclusion that the appropriate course would be to assess the suitability of the respondent herein by a committee of which Sri T.R. Sridharan and Sri M.V. Kamath are not members. In fact the order of the learned Single Judge, viewed from another angle is also innocuous in nature, inasmuch as the interest of justice is served by redressing the grievance of the respondent herein without effecting the other promotees or the entire promotion process. We therefore do not find any infirmity in the findings recorded or the conclusion reached by the learned Single Judge.

One other aspect of the matter is that admittedly the respondent herein has retired from service on 31.5.2001 on attaining the age of superannuation and as noticed above, the consideration of the case of the respondent herein in the manner suggested by the learned Single Judge would not in any way affect any other Officer who has been promoted and all that the respondent would be entitled to is certain monetary benefits, if ultimately it is found that he is entitled to notional promotion. In this regard, though the learned Counsel for the appellant placed reliance on a decision rendered by the Hon''ble Supreme Court in the case of the Union of India and Anr. v. Tarsenlal and Ors. 2007 (4) LLN 159 to contend that the promotional pay would be available only if he has shouldered the duties and responsibility of the higher post and not otherwise, we do not choose to express any opinion in this regard as it is premature at this stage since the said question would arise only after reconsideration and thereafter if the respondent is found entitled to promotion. Even otherwise the benefit of pension would also be an issue if ultimately the respondent succeeds.

Therefore, viewed from any angle, we are of the opinion that the order dated 17.4.2002 passed by the learned Single Judge in W.P. No. 4964/2000 (S) does not call for interference. Consequently the appeal being devoid of merit is accordingly dismissed with no order as to costs.