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Judgment
B. Subhashan Reddy, J.—This Writ Petition filed by the Officers of State Bank of Hyderabad assails the action of the 1st respondent in treating respondents 2 to 105 as seniors over the petitioners and seeking refixation of seniority by quashing the Circular dated 17-9-1983.
Advertisement was made in September, 1975 for appointment to the post of Probationary Officers in the services of the State Bank of India and its subsidiary Banks and the 1st respondent is one of such subsidiary Banks. Educational qualifications were prescribed and the mode of selection was by written test followed by interview. Petitioners and respondents 2 to 16 were among such personnel, who appeared for the said examination and were successful in the results announced on 1-9-1976. It is needless to mention that such selection, which was announced on 1-9-1976 was on the basis of merit of the candidates and accordingly the rankings were assigned. The selection was made by Central Recruitment Board and rankings according to the marks obtained in order of merit will be maintained and basing on the same, the allotment will be made to various subsidiary Banks. Petitioners and respondents 2 to 16 were allotted to the 1st respondent. While respondents 2 to 16 were all intimated their postings in the office of the 1st respondent much before the end of 1976 and they have also taken charge before the end of 1976, the petitioners were served with such posting orders much later and were asked to join in the months of January and February, 1977. Basing on the respective dates of taking of charge, a rankings were given in the said Officers cadre Gr. II and in view of the above situation, respondents 2 to 16 were given rankings over the petitioners. The next promotion post was Grade-I, to which the eligible criteria was 4 years qualifying service in Grade II post. That was in view of the circular dated 7-7-1975. For personnel having 4 years qualifying service, written test and oral test were prescribed and only oral interview for such of Grade-II Officers having qualifying service of 7 years. This qualifying service was reduced by another Circular dated 20-3-1979. Under this Circular, the qualifying service was reduced from 4 years to 2 years if the promotion was to be based on written test and interview and it was 5 years if it was only oral interview. The cut-off date mentioned was 1-1-1979. As such, such of those Officers of Grade-II, who were in service as such on 31-12-1976 alone were eligible. By reason of the same, while respondents 2 to 16 were made eligible to hold the said posts, petitioners were not qualified. As the respondents 2 to 16 were promoted, they went up in ladder to Grade-I post. Then came State Bank of Hyderabad (Officers) Service Regulations, 1979 with effect from 1-10-1979. Acting on Regulation 7 thereof, the petitioners and respondents 2 to 16 were categorised as Junior Management Grade Scale-I Officers in the pay scale of Rs. 700-1800. Officers promoted from Grade-II to Grade-I before 31-12-1972 were fitted in Middle Management Grade Scale-II. Even though the anomaly to some extent was removed, the petitioners were still treated as juniors in Junior Management Grade Scale I (hereinafter referred to as ''JMG-I''). The next promotional post is Middle Management Grade Scale-II (hereinafter referred to as ''MMG-II''). The 1st respondent issued a Circular No. 24/79 dated 20-3-1979 for effecting promotions from JMG-I to MMG-II. The criteria being merit-cum-suitability through an interview conducted for evaluating the same. But, again, a cut-off date was specified and the same was 31-12-1978. Only such of those JMC-I officers who were promoted to erstwhile Officers Grade-I before 31-12-1978 were made eligible. Similar was the Circular No. 82/83, dated 17-9-1983 issued by the 1st respondent holding that such of those officers in JMC-I who have been promoted to the erstwhile Grade-I post upto and including 1-1-1979 as eligible for consideration and promotion to the post of MMG-II. Here again, the petitioners were found ineligible while respondents 12 to 16 were found eligible as the latter were promoted to the erstwhile Grade-I post effective from 1-1-1979 even though such promotion orders were in fact issued on 10-1-1980. The petitioners grievance against respondents 17 to 105 is that they were shown as seniors even though they were promoted from clerical cadre to the erstwhile Grade-II and while one year probation was prescribed for them 3 years period was prescribed for the petitioners and respondents2tol6;however, the period of probation was reduced from3 years to 2 years later. Because of the prescription of one year probation, respondents 17 to 105 were confirmed earlier than the petitioners and were then promoted to the erstwhile Grade-I post. Before the date set for selection to the post of MMG II, this Writ Petition was filed and stay orders were sought for. But, no ex parte stay was granted, instead, notice was issued. As such, the selection process went on. In the span of 11 years, not only the promotions were effected to MMG-II, but also to the posts in MMG-III.
2(A). The 1st respondent filed a counter stating that appointment orders '' were issued on receipt of medical reports of successful candidates, that the 1st respondent can not be made responsible for the variance in the dates of taking charge by the Officers so appointed to Grade-II posts and the seniority in Grade-II in the office of the 1st respondent is maintained in accordance with the Rules governing the service conditions and that the petitioners are bound by the same. '' It also defended the promotion policy as being consistent and free from arbitrariness. They denied that the Circular enunciating promotion policy was issued on 20-3-1979 was tailor-made to suit the respondents 2 to 16. It was pleaded that the said Circular of 1979 was issued after holding discussions with the Bank Officers Association and there is nothing wrong in doing so. It is also stated that the said promotion policy was approved by the Executive Committee of the 1st respondent-Bank on 6-3-1979. Similar is the defence with regard to the Circulars issued in the years 1981 and 1983. Lastly, the 1st respondent has pleaded laches on the part of the petitioners stating that all . through the petitioners were knowing all things about their seniority vis-a-vis respondents 2 to 105 and the promotion policy enunciated from time to time and the Writ Petition is liable to be dismissed not only for the reasons stated above, but also for the reason of laches in approaching this Court in the year 1984.
Mr. K. Subrahmanya Reddy, the learned senior Counsel appearing for the petitioners, submits that the date of joining cannot be the criteria for fixing the seniority and the seniority ought to have been fixed basing on the rankings in the list prepared by the Central Recruitment Board and fortuitous circumstance of taking charge first, cannot be reckoned to the benefit of respondents 2 to 16; thus depriving the petitioners, who are found to be more meritorious than the above respondents. He further contends that the eligibility criteria for promotion from JMG-I to MMG-II is merit-cum-sutiability and as such the question of making further classification fixing a cat off date as 1-1-1979 tracing to promotions hither to Grade-I post have got no relevance and that in any event as there was no one of consideration fixed, all Officers in JMG-I cadre were entitled to be considered for appointment to the post of MMG-II and fixing of cut-off date, thus depriving the petitioners was arbitrary, discriminatory and violative of Articles 14 and 16 of the Indian Constitution.
Mr. K. subrahmanya Reddy has cited the following decisions in support of his contention.
Tejinder Singh Sandhu Vs. The State of Punjab and Others, , Smt. P. Rama Devi v. The Govt. of A.P. and Ors. 1993 (1) An.W.R. 187, Madan Mohan v. Hon''ble Chief Justice 1975 (2) SLR 889, S.B. Mathur v. Chief justice of Delhi High Court 19S9 Supp. (1) SCC 34, Prem Singh v. State of Haryana 1993 (4) SLR4, Harinandan v. S.N. Dixit, 1969 (3) SLR 468 and State of U.P. v. Ram Gopal 1981 (2) SLR 3.
In Tejinder Singh Sandhu Vs. The State of Punjab and Others, it was held that the seniority was to be reckoned in order in which it was mentioned and not basing on divergent dates of taking charge which was only fortuitous and that fortuitous circumstance cannot effect the seniority. In Smt. P. Rama Devi v. The Govt. of A.P. and Ors. 1993(1) An.W.R. 187 a Division Bench of this Court to which I was a party, held that two lecturers appointed on the same day are to be treated in terms of seniority according to the rankings given in the order and not basing on the date of reporting i.e., taking charge. In Madan Mohan v. Hon''ble Chief Justice 1975 (2) SLR 889 it was held that the posts of Assistant Superintendent and Superintendent were selection posts and the entire field of eligibility had to be considered irrespective of seniority in making their choice for promotion. It was held:
"...It is well known that promotion to a selection post is not a matter of right which can be claimed merely by seniority. The circumstance that these posts are classed as posts of responsibility, or trust or of special qualifications and promotions have to be made by selection, irrespective of seniority, suggests that promotion to these posts are not automatic, being made only on the basis of ranking in the Gradation List. The question of merit enters primarily in the reckoning. In our view, the petitioner is right in his contention that the ranking or position in the Gradation List does not confer any right on these respondents to be promoted and that it is a well established rule that promotion to such posts is to be based primarily on merit and not seniority alone. The principle is that where the claims of officials to such posts is under consideration, seniority should not be regarded except where the merit of the officials is judged to be equal and not other criterion, therefore, is available. It is unfortunate that the field of eligibility was kept so wide and respondent No. 1 may, perhaps, like to amend the rule to narrow down the field to certain number, that is to say five to seven times of the actual promotion posts lying vacant or likely to become vacant. But the rule as it stands, obviously, vitiates the promotions made as there was failure to consider the entire field of eligibility to the great disadvantage of the petitioner".
As the entire field of eligibility was not considered, the promotions were quashed. In S.B, Mathur v. Chief Justice of Delhi High Court (4 supra), it was held that even if qualifying mark is obtained, if there are large number of candidates, the authorities will be entitled to fix zone of consideration specifying a ratio. In the said case, a ratio of 1:3 was maintained and challenge to fixation of the said ratio was held to be untenable repelling the argument that all such candidates who have obtained a qualifying mark were entitled to be interviewed. In Prem Singh v. State of Haryana (5 supra), it was held that promotion in the service cannot be claimed as a matter of right for the posts where the criteria is merit-cum-seniority, but the same cannot be applicable when the criteria is seniority-cum-merit. It was held that the rule that all eligible persons should be considered at the time of promotion is applicable only when selection is to be made on merit and not on the basis of seniority. In the said case, as it was on the basis of seniority, the claim of the petitioner for promotion was negatived. In Harinandan v. S.N.Dixit(6 supra), it was held that as the post of superintendent in the Legislative Assembly Secretariat was a selection post, all officials of the Legislative Assembly Secretariat holding the posts in the same scale of pay as Upper Division Assistant were eligible for promotion to the said post of Superintendent and not considering all such eligible candidates was fatal to the order of promotion and as such, nullified the promotion. In the said case, there was no field of choice and as such, the Patna High Court held that all personnel holding the Upper Division Assistant Category post were eligible to be considered and the same was upheld by the Supreme Court. In State of U.P. v. Ram Gopal (7 supra), it was held that non-consideration of the persons eligible until the exhaustion of the list of 300 persons as arbitrary and violative of Articles 14 and 16. In the said case, there were statutory rules of 1970 envisaging preparation of new list every year.
Countering the arguments of Mr. K. Subrahmanya Reddy, Mr. Srinivasa Murthy, the learned Counsel for the 1st respondent submits that the fixation of the seniority of the petitioners vis-a-vis respondents was in accordance with the rule in force and that there was no deviation from the rules so as to complain of arbitrariness and that the 1st respondent is not at all at fault in the petitioners taking charge later to respondents 2 to 16 and the norm of fixation of seniority on the basis of dates of taking charge which was the criteria was scrupulously followed and that the petitioners'' contention is untenable. He further contended that the promotion policy was enunciated from time to time after following the prescribed procedure and even though Regulation 17 contemplates of evolving a promotion policy, but since regular promotion policy was not evolved, ad hoc policy was made under circulars dated 13-5-1981 and 17-9-1983 and the criterion of two years, fixing a cut off date was rationale and valid classification and there is no violation of Articles 14 or 16 of the Constitution and that in any event, as the petitioners even though knew of their seniority, they did not protest and that promotions were effected every year and that the petitioners did not point out any irregularity and that at the belated stage in 1984 this writ petition filed in the year 1984 is not maintainable and is hit by laches. He has cited the judgment in V.J. Thomas and Others Vs. Union of India (UOI) and Others, in support of his proposition that classification is reasonable and valid. In the said case, the appellants were the Junior Engineers in the Telegraph wing of the Posts and Telegraph Department and the next avenue of promotion was Assistant Engineer. The promotions were governed by Telegraphic Engineering Service (Class II) Recruitment Rules, 1966. One was to be qualified at the qualifying examination for being considered for appointment to the post of Assistant Engineer. By 1982, more than 4000 Junior Engineers of pre-1973 batch had become eligible to take the examination for 300 vacancies and having regard to the same, a distinction was made on the basis of Junior Engineers recruited prior to 1973 and those recruited in 1973 and thereafter. Having regard to the same, the classification was held to be rational having intelligible differentia with nexus to the object sought to be achieved. It was held by the Supreme Court:
".....It is a known principle of service jurisprudence that even though minimum eligibility criterion is fixed enabling one take the examination, yet the examination can be confined on a rational basis to recruits upto a certain number of years. That constitutes recognition of long experience and not permitting some irate junior to score a march. If by 1982, nearly 4,000 Junior to score a march. If by 1982, batches had become eligible for taking competitive examination, the department would be perfectly justified in keeping the examination open only to persons who have put in such long service and leaving others to wait for the next examination. If for taking examination this aspect introduces classification, if is based on rational and intelligible differentia which has a nexus to the object sought to be achieved. By the note, for a period of two years only pre-1973 Junior Engineers who had cleared qualifying examination were given a chance to take competitive examination. If this introduces a classification, it is valid. It caters to a well) known situation in service jurisprudence that there must be some ratio of candidates to vacancies and it is based on long experience as a rational basis for classification. Viewed from this angle, there is nothing in the policy underlying the note to Rule (4) as being either discriminatory or arbitrary or denying equality of opportunity in the matter of promotion. It had the desired effect of not having a glutt of Junior Engineers taking examination compared to fewer number of vacancies. Length and experience were given recognition by the note. The promotion can be thus by stages exposing the promotional avenue gradually to persons having longer experience. This seems to be the policy underlying the note and there is nothing improper or unconstitutional in it".
The petitioners and respondents 2 to 16 were recruited from the same source. They appeared in the written examination and interview pursuant to the same notification. The results were announced at the same time and so also the selection and appointment. They were allotted to the 1st respondent-bank by a common order. The fact that the serial order is maintained by the recruitment board having regard to the marks obtained by the candidates in the written examination and interview, is not disputed. Further, the contention of the petitioners that they were placed above the respondents 2 to 16 by recruitment board is not controverted. A fortuitous circumstance of receipt of appointment orders by the respondents 2 to 16 earlier than the petitioners and consequent joining the posts by them earlier in point than the petitioners cannot have the effect of changing the fate of their service. The order of seniority maintained by the recruitment board cannot be made topsy turvy merely because respondents 2 to 16 had joined the service early, not because of the negligence of the petitioners, but because of their receipt of appointment orders at an earlier point of time. Equality of opportunity in matters of promotion can be claimed as of right if the competing personnel belong to the same class. The artificial cut off date viz. 1-1-1979 fixed for considering the personnel holding the erstwhile Grade-II posts to that of Grade I has got no rationale at all. As the petitioners and respondents 2 to 16 can never be distinguished in the matter of their service and as they form only one class, a further classification as one who has taken charge before 1-1-1979 and another taking charge after 1-1-1979 cannot be made. As such, the choice of the said date is arbitrary, capricious and is totally unrelated to the object sought to be achieved. That apart after the framing of the statutory rules with effect from 1-10-1979 and after merging the posts held by the petitioners and the respondents 2 to 16 as Junior Management Grade Scale-I (shortly ''JMG-I''), further classification within the same cadre - JMG-I, for further promotion on the ground of respondents 2 to 16 having been promoted to Grade-I before 1-1-1979 is totally irrational and has got no intelligible differentia at all and is arbitrary and discriminatory violating the equality clause guaranteed under Article 16.
It is rather unfortunate that while the anomaly created by the variance in the dates of taking charge basing upon the receipt of appointment orders was made good to certain extent even though the petitioners were placed below the respondents 2 to 16 by treating them as JMG-I cadre, the 1st respondent has again resorted to act of discrimination by carving out an untenable and baseless distinction of erstwhile Grade-I and erstwhile Grade-II which had become extinct on the creation of JMG-I Post. The question of creating a class within that class as one promoted as Grade-I as on 1-1-1979 which post had become extinct has got no relevant at all. It is also pertinent to mention that a common seniority list was prepared for petitioners and respondents 2 to 16 in the cadre of JMG-I and it is ununderstandable as to what is that intelligible differentia which can form basis for discriminating the petitioners disentitling them for consideration for promotion to the posts of MMG-II. As such, both the factors of treating the seniority inter se the petitioners and respondents 2 to 16 - either basing on their respective dates of joining erstwhile Grade-II posts or their holding Grade-I posts (which had become extinct) as on 1-1-1979 are irrelevant, irrational, arbitrary and thus discriminatory violating the fundamental right guaranteed under Article 16 of the Constitution of India. Further, when zone of consideration was not fixed at all, all the Grade-II Officers for promotion to Grade-II prior to framing rules and after framing of the rules all the eligible junior management group-I officers without any further distinction and more particularly, the petitioners who were appointed along with respondents 2 to 16, were entitled to be considered for promotion and by not doing so, they were denied the opportunity of consideration for promotion violating their fundamental right guaranteed under Article 16. This view of mine is fortified by the decisions cited by the learned Counsel for the petitioners which have been mentioned supra as the ratio decided in (he said judicial precedents is squarely applicable to the facts of this case while the decision cited by the learned Counsel for the 1st respondent has got no bearing on the facts of this case.
With regard to respondents 17 to 105 who have been promoted from clerical cadre to erstwhile Grade-II, there is a reasonable classification as they form a distinct class in so far as undergoing probation is concerned. Inview of the fact that they had been in longstanding service of the bank, prescribing a different period in the matter of probation than that of petitioners and respondents 2 to 16 cannot be called discriminatory.
In support of the plea of laches, Sri K. Srinivasa Murthy has cited the decision in P.S. Sadasivaswamy v. State of Tamil Nadu 1976(1) SLR 53. In the said case, the appellant therein was appointed as a Junior Engineer on 21-8-1946 and was promoted as Assistant Engineer on 12-3-1951 and in 1955, he was selected by State Public Service Commission as an Assistant Engineer along with respondents 2 to 4 and was placed above them in rank. The 2nd respondent was promoted as Divisional Engineer in the year 1957. The appellant made a representation protesting against the same in the same year. He also made further representations. Meanwhile, respondents 2 to 4 were promoted as Superintending Engineers over the head of the appellants in the year 1970 and on 23-1-1971, the appellant himself was promoted as Superintending Engineer. The appellant then filed Writ petition in the year 1971 taking a plea that the 2nd respondent, who was a junior to him as Assistant Engineer ought not to have been promoted as Divisional Engineer in the year 1957 by relaxing the relevant rules. In that context, the Supreme Court held that the Writ Petition was rightly dismissed by the Madras High Court on the ground of laches and confirmed it.
Dealing on the aspect of laches, in his reply, Mr. K. Subrahmanya Reddy, cited a decision of the Supreme Court in M/s. Dehri Rohtas Light Railway Company Limited Vs. District Board, Bhojpur and and District Board, Shahabad and others, . In the said case, the Supreme Court held that plea of ladies is not a Rule of law, but is a rule of practice. The Supreme Court held:
"The rule which says that the Court may not enquire into belated and stale claim is not a Rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches".
in the instant case, even though the seniority list has been prepared, but the same has not been communicated to the petitioners. The petitioners have specifically averred the same in the writ petition and in the counter filed by the 1st respondent-bank, non-service of the seniority list on the petitioners is not disputed. But what is pleaded by the 1st respondent-bank in the counter is that the petitioners knew about their seniority. Such an assumption cannot be drawn as the fixation of seniority, which is a valuable right of an employee, has got to be communicated so that he can peruse the same apply his mind and then agitate, if he feels aggrieved. But, such a procedure which is necessary and also warranted by the principles of natural justice has not been followed by the 1st respondent-bank and as such, I find no laches on the part of the petitioners in approaching this Court.
In view of what is stated supra, I hold
(1) that the petitioners shall be treated as seniors to that of respondents 2 to 16 in the cadre of Junior Management Scale-I (JMG-I) having regard to their rankings given by the Central Recruitment Board;
(2) that the petitioners be given notional seniority to higher posts by adopting the basis mentioned under clause (1) above; and
(3) that the petitioners shall be entitled for all attendant benefits pursuant to the decision taken under clauses 1 & 2 above.
The writ petition is allowed to the extent indicated above. No costs.