K. Lakshminarayanan and another vs Dena Bank and Others

The 1st petitioner, K. Lakshminarayanan jointed the 1st respondent, Dena Bank, in the year 1961 as a clerk. The 2nd petitioner, Harshvardhan B. Vyas joined the same bank in year 1964 also as a clerk. Both of them were promoted in Scale I of the Junior Management Grade effective from July 1, 1979 along with Respondents 2 to 13. The first seniority list was published by the 1st Respondent Bank in February 1981. In the said list the position of both the Petitioners was correctly shown. Respondent Nos. 4 to 13 and Petitioner No. 2 were shown as juniors of Petitioner No. 1 and Respondents 10 to 13 were shown as juniors to Petitioner No. 2. The next seniority list was published in January 1985 which showed Respondents 2 to 13 very much higher than the Petitioners in Scale II of the Middle Management Grade although Respondents 2 to 13 were juniors to Petitioners 1 and 2 and by this seniority list they were treated as seniors. The Petitioners, therefore, wrote a letter dated June 24, 1986 to the 1st Respondent Bank making enquiries as to the basis and criteria on which promotions were given to Respondents 2 to 13. They were orally informed that Respondents 2 to 13 were promoted earlier than them by a resolution of the Board of Directors of the 1st Respondent Bank passed in a meeting held on January 13, 1980, as they (Respondents 2 to 13) were Chartered Accountants. The Petitioners have challenged this actions on the part of the 1st Respondent Bank in this Writ Petition under Art. 226 of the Constitution.

In support of the Petition, Mr. Chopra submitted that shifting Respondents 2 to 13 from Scale I of Junior Management Grade to Scale II of the Middle Management Grade amounts to promotion of the said Respondents which was in violation of the Dena Bank (Officers) Service Regulations, 1979 (hereinafter referred to as ''the said Regulations'') ignoring the claims of the Petitioners and, therefore, the Petitioners who were promoted afterwards be granted deemed promotion from the date on which the Respondents 2 to 13 were promoted. In reply Mr. Talsania, appearing on behalf of the 1st Respondent Bank, canvassed that Respondents 2 to 13 were not promoted as alleged by the Petitioners but they were properly classified and put in a proper grade because they were Chartered Accountants and no injustice was done to the Petitioners. Mr. Talsania also urged that the writ petition suffers from laches and delay of about six years and on that ground also no relief can now be given to the Petitioners.

We shall first deal with the argument of Mr. Talsania that the Petitioners should not be granted any relief in this writ petition because it was filed six years after the cause of action, if at all, accrued in favour of the Petitioners. The submission of the learned Counsel is that Respondents 2 to 13 admittedly according to the Petitioners were promoted in accordance with the Board''s resolution of January 1980, whereas the Petition was filled in August 1986 and therefore the delay of six years could not be condoned and no relief be granted to the Petitioners. In the alternative Mr. Talsania canvassed that at any rate the Petitioners admittedly came to know about the concerned seniority list in the month of January 1985 from when also the writ petition is filed after a delay of about 18 to 19 months which should not be condoned. In support of his argument Mr. Talsania relied upon a Supreme Court Judgment in the case of P.S. Sadasivaswamy Vs. State of Tamil Nadu, :

I am unable to persuade myself to agree with this submission of Mr. Talsania because the Petitioners made clear averments in para 8 of the Petition that the seniority list as on December 31, 1982 was published in the form of a printed booklet and was received by the Petitioners in January 1985 and further seniority list of the officers as on December 31, 1984 was published and received by the Petitioners sometimes in November 1985 and in view of the fact that the first promotion had taken place as per the rules, guidelines and policy sometime in June 1982, the Petitioners only checked whether their names were in the seniority list in the proper grade. It was also contended by the Petitioner that the said list contained a large number of pages and it was difficult for the Petitioners to check the names of each and every person as compared to the position of the Petitioners and they had no reason to believe that there were any supersession. According to them, in the middle of the first half of the year 1986 they noticed that some persons at the main office were considered senior to them though they were in fact junior as per the list as of June 30, 1979 and therefore they went through the seniority list and found that Respondent 4 to 13 were wrongly shown as seniors to Petitioner No. 1 and Respondents 10 to 13 were wrongly shown as seniors to Petitioner No. 2. The Petitioners thereafter addressed two letters dated June 12, 1986 and June 24, 1986 to the Chairman of the 1st Respondent Bank putting this facts on record and making enquiry as to why the said Respondents came to be promoted and some of them over their heads. However, no reply was received and therefore a reminder was sent but without result and thereafter in or about the second week of July 1986, they were unofficially called and informed by one Namboodri, an officer in the Personnel Department of the 1st Respondent, that there had been no amendment to the said Regulations but promotions of Respondents 2 to 13 were made pursuant to the Memorandum put up by the management of the Bank and a resolution passed by the Board of Directors at its meeting held on January 19, 1980. The Petitioners also came to know that there was no sanction of the Central Government to such promotions and that Respondents 2 to 13 were promoted because they were Cost/Chartered Accountants. This oral information which the Petitioners got was put on record by them vide their letter dated July 15, 1986 questioning the powers of the Board to pass such a resolution in contravention of the said Regulations. These averments made by the Petitioners in their Petition were dealt with by Mr. G. R. Nevrekar on behalf of the 1st Respondent Bank in his Affidavit dated February 9, 1988.

It is the case of the 1st Respondent Bank that the seniority list was published in a printed booklet as far back as in December 1982 and they were freely available to all the employees of the Bank and it was totally inconceivable that the Petitioners received the information only in the month of January 1985. The Bank also contended that the seniority list was published and made available to each and every employee with a view to ensure that the employees should know that they were correctly placed in the seniority list and the Petitioners cannot be heard after six years to say that they merely checked the seniority list only in the year 1986. Alternatively it was also contended in the said affidavit that if at all the Petitioners felt genuinely aggrieved they should have disputed the seniority list in the month of of January 1985 itself. It is pertinent to note here that the 1st Respondent Bank brought no material on record to show that the seniority list which was published as far back as in December 1982 was freely available to all the employees. As a matter of fact, the said averments made by Mr. Nevrekar in his affidavit appears to be false because this All India Seniority List of Officers as on December 31, 1982 was admittedly published in the form of a booklet in the month of March 1984. It is also important to note that the 1st Respondent Bank did note bring any material on record to show as to why and in what manner, the seniority list was made available to each and every employee. Therefore, I am of the opinion that Mr. G. R. Nevrekar seems to have made an attempt to misguide this Court by making a bald statement in his affidavit that the seniority list was made available to each and every employee. I find lot of substance in the argument of Mr. Chopra that the Petitioners would not have bothered to study the seniority list in the year 1982 because admittedly between 1979 and 1982 no promotion had actually taken place. Under the circumstances, I am of the view that there was no delay of six years in filing this writ petition.

Mr. Talsania urged that admittedly the Petitioners had come to know about the seniority list in the month of January 1985 and they filed the present writ petition only in the month of August 1986 and therefore there was a delay of one and a half years which has not been explained at all. Relying upon the Supreme Court''s judgment in the case of P. S. Sadasivaswamy v. State of Tamil Nadu (supra), Mr. Talsania submitted that a person aggrieved by an order of promotion of a junior over his head should approach the Court atleast within six months or atleast a year of such promotion, but he forgot to notice further in the same judgment the observations of the Supreme Court that "It is not that there is any period of limitation for the Courts to exercise their powers under Art. 226, nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of certain length of time". Be that as it may, this Supreme Court''s judgment relied upon by Mr. Talsania is not relevant to the facts of our case because in the said case there was a delay of 14 years in approaching the Court. At any rate, I am not inclined to non-suit the Petitioners merely on the ground that they approached this Court after a lapse of about 18 months as on merits they have a case which I shall presently point out. Justice which is very much there in favour of the Petitioners cannot be denied to them on a technical plea that they approached this Court 18 to 19 months after the cause of action arose in their favour.

Admittedly, the service conditions of the Petitioners and Respondents 2 to 13 are governed by the Dena Bank (Officers) Service Regulations, 1979. These Regulations are made in exercise of the powers conferred by S. 19 read with sub-sec. (2) of S. 12 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 by the Board of Directors of Dena Bank in consultation with the Reserve Bank of India and with the previous sanction of the Central Government. Therefore, these Regulations have the Statutory force which can not be displaced by the Board''s resolution. Chapter II of these Regulations deals with grades and categorisation of posts as under :

(a) Top Executive Grade Scale VII Rs. 3000-125-3500 Scale VI Rs. 2750-125-3250 (b) Senior Management Grade Scale V Rs. 2500-100-2700 Scale IV Rs. 2000-100-2400 (c) Middle Management Grade Scale III Rs. 1800-75-2250 Scale II Rs. 1200-70-1550-75-2000 (d) Junior Management Grade Scale I Rs. 700-40-900-50-1100-EB- 1200-60-1800

Chapter III deals with the fitment of existing officers and promotees in the new grades and scales of pay. Chapter IV deals with appointment, probation, confirmation, promotion, seniority and termination. It is to be seen that if an employee of the Dena Bank is shifted from Scale I of the Junior Management Grade to Scale II of the Middle Management Grade, it means he gets promotion from Scale I to Scale II. Regulation 17 deals with the promotions aspect of the employees of the 1st Respondent Bank. These promotions to all grads of officers are to be made in accordance with the policy laid down by the Board from time to time having regard to the guidelines of the Government, if any. Accordingly, in these Regulations itself the guidelines issued by the Government are incorporated. Five factors are taken into consideration as relevant of promotion decisions. They are, Seniority, Educational/Professional Qualifications, Banking knowledge, Performance and Potential. The weightage for various factors in the promotions are indicated in the following chart :-

(For Table see next page)

According to the procedure laid down for awarding the aggregate marks, for seniority 2 marks are awarded for every completed year of service in the respective scale. So long as educational qualifications area concerned, 2 marks are given for graduation, 2 marks for post graduation/double graduation, 3 marks for specialised higher qualifications such as Chartered Accountant, Cost Accountant, MBA and Engineering Degree and Diplomas awarded by recognised Institutes of Professional Management where the duration of the Diploma Course will be two years or more. The maximum marks for educational qualifications will be 10. Different procedure is envisaged for the performance and interview with which we are not concerned in the present Petition. These Regulations, therefore, show that in the matter of promotions, Respondents 2 to 13 would have been at the most entitled to 3 marks for their specialised higher qualifications such as Chartered Accountant and/or Cost Accountants but on a specious ground that they were Chartered Accountants and Cost Accountants, the 1st Respondent Bank promoted them from Scale I to Scale II which, in my opinion, would not be permissible by the Regulations.

----------------------------------------------------------------------- Weightage (Percentage Points) ----------------------------------------------------------------------- Performance Movement Seniority Educational/ Written Performance Potential service in Professional Examina- appraisal the Scale Qualifica- tion tions ------------------------------------------------------------------------ From Junior Management 30 10 40 10 10 Grade-Scale I to Middle Management Grade/Scale II. -----------------------------------------------------------------------

Mr. Talsania urged that Respondents 2 to 13 were properly categorised in accordance with Regulation 6(1) which empowers the Board to categorise such employees, regard being had to the responsibilities and functions exercisable by them and such categorisation may be reviewed by the Board. It is important to note that categorisation can be done in respect of a post and not that, in the name of categorisation one can be promoted from one post to another. It is also pertinent to note that as a matter of fact, the 1st Respondent Bank did not intend to categorise Respondents 2 to 13 if one looks at the Board''s resolution dated January 19, 1980 which speaks in terms of fitment of Chartered Accountant/Cost Accountant in Middle Management Grade, i.e. Scale II. A note put up for the approval of the Board by the Dy. General Manager (Personnel) on January 12, 1980 also shows that the subject was regarding fitment of Chartered Accountant/Cost Accountant the Middle Management Grade - Scale II. It should be borne in mind that fitment could be in the same pay scale and never from one pay scale to another pay scale. Therefore, the 1st Respondent is not quite clear whether Respondents 2 to 13 were actually categorised or they were properly fitted. Mr. Talsania argued that Respondents 2 to 13 were in fact classified and put in a proper classification from Scale I to Scale II which, in his opinion, was not a promotion. Mr. Talsania further argued that this classification of Respondents 2 to 13 was based on their educational qualifications and further submitted, relying upon two Supreme Court''s judgments, in the case of V. Markendeya and Others Vs. State of Andhra Pradesh and Others, , and in the case of Mew Ram Kanojia Vs. All India Institute of Medical Sciences and Others, . There is no dispute about the proposition of law that classification of employees can be made on the basis of educational qualifications for the purposes of promotion but that would be in the same service and not from one scale to another. Therefore, the Supreme Court''s judgments relied upon by Mr. Talsania are not relevant to the facts of the present case. The Respondents 2 to 13 therefore could not have been promoted from Scale I to Scale II either in the name of categorisation or fitment or classification overlooking the seniority of the Petitioners. That was done by the 1st Respondent in blatant violation of the said Regulations of 1979. This has resulted into injustice to the Petitioners. However, it is an admitted position that the Petitioners were promoted from scale It Scale II effective from June 1, 1982, which promotions they were entitled to effective from January 1, 1980 when Respondents 2 to 13 who were juniors to them were promoted. This grave error which the 1st Respondent Bank committed will have, therefore, to be rectified.

In this view of the matter the writ petition succeeds and the same is allowed. The 1st respondent Bank is directed to grant the petitioners deemed promotion effective from January 1, 1980 and give them all the benefits in Scale II and also put them in proper seniority vis-a-vis respondents 2 to 13. Rule is accordingly made absolute with costs.