Neelapala Suryanarayana and Others vs Union Bank of India and Another

Petitioners have claimed that the first respondent (hereinafter referred to as the ''Bank'') has empanelled Junior Management Grade/Scale-I Officers for the purpose of next promotion to Middle Management, Grade/ Scale II (General Banking Officers) as per Staff Circular No.3290 dated 27th May, 1988, illegally arbitrarily, and in violation of Articles 14 and 16 of the Constitution of India. It is therefore claimed that the said empanelled list, be set aside and it be declared that petitioners are entitled to be empanelled for the purpose of promotion to the Middle Management Grade/Scale-II (Central Banking Officers) and they be included in the list circulated along with Staff Circular No.3290 dated 27th May, 1998 with all consequential., benefits. This is the writ sought.

The main grounds, on which such writ is sought, may be stated. The promotions in the Bank are governed by Promotion Policy for the Officers under Regulation No.17 of the Bank, for Officers Service Regulations, 1979 (hereinafter referred to as the ''Regulations'')- This Circular was issued on 8-2-1993 under Circular No.2530. Amendments were made from time to time. As per the Staff Circular No.2825 dated 13-6-1985, clause (g) of para 2.2 the number of Officers to be considered for participation in the promotion process from one Grade to the Higher Grade was restricted to ratio of 1: 3 or 4 at the most. This ratio was based on the number of vacancies identified/ contemplated for being filled up at the time of empanelment. Now it is alleged that 492 vacancies were identified for being filled up in Middle Management/Scale-II in the relevant year. In view of the ratio at the most 1968 candidates could be called for consideration. However, around 2000 Officers were in'' fact called for interviews. This enabled the management of the Bank to accommodate some of the Junior Officers, who did not fall within the ratio but in whom the management was interested. This prejudiced the interest of the Senior Officers. Further, the empanelled list of previous promotion process from Scale I to Scale II conducted in 1983 December was ultimately exhausted only at the end of 1987 November. It is alleged that filling up of vacancies which were existing till 1987 were operated from the panel which continued for almost four years and this was arbitrary and highly prejudicial to the staff of the Bank. The next process of promotion as started in December, 1987 and within a short time of less than six months the impugned Circular dated 27th May, 1988 that the empanelment was prepared. It is alleged that this shows mala fides of the Bank Management to accommodate the Junior Officers of their choice. Interviews for the last batch were conducted apparently on 23rd May, 1988 and within four days successful candidates were enlisted by the impugned Circular. It is alleged that in the history of Bank such speedy process has never taken place at any time before. It is alleged that as per Circular No,2877 dated 29th October, 1985 for promotion from Scale-1 to Scale-11 every Officer for being considered has to serve for a minimum period of two years in rural area. This was the qualifying condition for consideration for promotion. This provision was to come into effect from 1st June, 1988. To overcome the above difficulty and to give advantage-to the persons, who were working in Metropolitan Bombay Zone and who were without any rural experience, the management devised the unwarranted exercise of preparing the panel. It is alleged that in feet promotions which were to be given against vacancies arising after 1st June, 1988 could be given only to such candidates, who fulfilled the qualifications of rural service for two years. In the impugned empanelled list there are several Officers, who have not done any rural service as required. In spite of many representations, the management ignored the objections raised by various groups and Officers individually. In the note given by the management in the impugned empanelled list it has been stated :

"In the case of officers from the empanelment who have refused the offers of the Management for rural postings, their promotions are presently withheld, and will be subjected to the final order of the Court."

It is also urged that in the promotion policy as per para 2.5 weightage of job responsibility was a factor to be considered. Three marks were to be given for every completed year of service as Branch Manager/ Accountant etc. The maximum marks for this category were ten. Some of the petitioners were never given work as Accountant by the Bank management without their fault and were deprived of these marks. Some of the petitioners were given such opportunity only for a short time. Thus they were deprived of some of the marks. This was arbitrary action on the part of the management to favour some of the candidates. It is also alleged that the exact number of vacancies were never notified nor informed to concerned Officers, who were in the Zone of consideration. The cut-off date chosen was 21-12-1988 for calling the Officers for interview. The interviews were not taken by one and the same Committee but two separate Committees conducted the interviews. Thus there was variation in respect of evaluation of merits of the candidates. Each committee evaluated the merit in its own way. It is repeated that the promotion process has been expedited for some ulterior reason and to help certain candidates in whom the management had interest. The petitioners contend that they have a good record of service without any adverse remarks and hence the action of management is bad in overlooking their claim.

The Bank does not dispute that Staff Circular No.2825 dated 13-6-1985 prescribes the criteria in respect of number of participants in promotion process. However, in 1985 October by Circular No.2877 the Board of Directors were empowered to relax the provision to certain extent. It is not necessary to give the number of identified posts available . for promotion at the time of initiation of promotion process. It is not necessary under any principle to inform the candidates concerned as to how many posts have been identified for being filled up. The Bank has agreed to inform the President and General Secretary of the recognised Federation the number of posts for which promotions are to be considered. In the instant case also the number of posts were identified but were not informed to each candidate as it was not incumbent. It is not disputed that number of Officers to be considered for participation in the process from one scale to another is normally three to four times of the identified vacancies to be filled up. This was along with power of Board of Directors to relax the criteria when sufficient number of fresh candidates does not fall within the Zone of the consideration. It was to enable fresh blood to be brought under consideration that the number of candidates under consideration were increased from 1968 to a larger number. The process involves screening at various levels and the ultimate, number of candidates called for interviews did not exceed the permissible limits. As per the Promotion Policy contained in para 2.13 the stipulation is that merit list once prepared is valid till all Officers are absorbed against identified vacancies and the promotion process is repeated only if the list is exhausted. It was in view of this provision that as soon as the earlier list was exhausted, the new process was initiated for identified vacancies of 492. It is denied that to overcome the condition that a candidate has to put in minimum two years in rural area and to give distinct advantage to candidates working in Metropolitan Bombay Zone, the process was expedited and the persons, who did not have rural experience were empanelled in the list. At the time when the list was prepared it was not required that rural service of two years should have been done by the candidates. The said condition was to come into effect much subsequently. As the said condition was not in force at the time of the preparation of the list, the question of favoring certain candidates, who had not rendered rural service did not arise at all. It is denied that there was manipulation or any motive in preparing the list of empanelled candidates. The empanelment is according to the Rules and process. It was pointed out that the posting of Officers as Accountants/Branch Managers etc., depends upon the seniority and suitability of the concerned candidates. Each and every candidate obviously cannot be given such charge for variety of reasons. The marks allotted for such work are very minimal. Thus it is contended that there was no violation of any of the constitutional provisions or of the Mandatory requirement of promotion process and policy.

It has to be pointed out that the list of empanelled candidates in the impugned Circular is attached to that Circular. The said Circular along with list is one of the material papers produced by the petitioners. The said list consists of 738 persons starting from one Mr. Ganesh Mishra and ending with Sri Vijay Shankar Tiwari. None of these 738 candidates empanelled in the impugned list have been made party-respondents to the present petition. Amongst all argument the learned Counsel for the respondents has arised some preliminary points apart from those raised in the counter. It was contended that the writ petition is not maintainable for want of necessary parties. The argument is that the writ sought by the petitioners is for cancelling or setting aside the list of empanelled candidates and instead to consider their claims., In effect the empanelled candidates, who have already been given the promotions, would be definitely affected if the prayer of the petitioners is granted. In such circumstances, it was necessary to make them parties and they were very necessary parties to the writ petition.

The learned Counsel for the petitioners however contended that the empanelled candidates are not necessary parties because the petitioners are challenging the whole process as such. According to him the process itself is violative of Article 14 of the Constitution of India on the ground of arbitrariness. In the circumstances the Bank is the only necessary party.

It is further urged by the learned Counsel for the respondents that the petitioners have participated in the whole process. They knew about the whole mode of process under which consideration has taken place. Having participated in the process they cannot turn round and challenge the said process only because they have foiled to come up to the required standards. It is also urged that in fact almost all the petitioners have been subsequently promoted to the higher Grade by following the same process which was repeated later on. In feet some of the persons were empanelled in the impugned list itself when they preferred representation/appeals to the management. They were appointed also. Thus having accepted the process they cannot now challenge the same. The factual position is not disputed.

I think that there is considerable force in the preliminary objection raised by the learned Counsel, for the respondents that the writ petition must fail for want of necessary parties. It is settled legal principle that persons, who were likely to be affected by granting of the writ sought by the petitioners must be given opportunity to place their point/case before the Court and are necessary parties. Similar question arose before the Supreme Court in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, the Supreme Court observed :

"The only respondents to the Sangh''s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh''s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.''''

These observations were made in para 28 of the judgment. The observations were repeated in para 50 of the said judgment. Again in Ishwar Singh v. Kuldip Singh the Supreme Court rendered a very brief judgment as follows :

"Ishwar Singh and 14 others were selected and appointed as Inspectors of Industries/ Managers Industrial Estate for Small-Scale Cottage and Village Industries, Haryana. The selection and the consequent appointments were challenged by two unsuccessful candidates before the High Court primarily on the ground that the interviews held for the said selection were a sham affair. It was contended before the High Court that the interviews were held from February 11 to February 18, 1992 and 350 candidates were interviewed on each date which meant that on average one minute and 20 seconds was the time taken for the interview of each candidate. The Ex-servicemen also challenged the selection on the ground that the dependants of Ex-servicemen were selected in preference to the Ex-servicemen. The High Court quashed the selection and the appointments on the finding that the interviews held were neither fair nor proper thereby vitiating the selection. These appeals by way of special leave are against the judgment of the High Court.

It is not disputed by the learned Counsel for the parties that except Ishwar Singh, no other selected candidate was impleaded before the High Court. The selection and tire appointment have been quashed entirely at their back. It is further stated that even Ishwar Singh, one of the selected candidates, who was a party, had not been served and as such was not heard by the High Court. We are of the view that the High Court was not justified in hearing the writ petition in the absence of the selected candidates, especially when they had already been appointed. We, therefore, set aside the judgment of the High Court dated December 8,1992 and send the case back for fresh decision after notice to the parties. The appeals are allowed in the above terms. No costs."

From this judgment also it is clear that the principle that the necessary parties should be joined is indisputably stated.

In J. Jose Dhanapaul Vs. S. Thomas and Others, it was pointed out as follows :

"It is not ''in dispute that the appellant was not a party to the impugned order dated 15-6-1993 made in O.A.No.2199 of 1992 by the Tamil Nadu Administrative Tribunal at Madras. Without being impleaded as a party, appointment of Thomas was annulled by the impugned order. The Tribunal, therefore, has committed grave error of law in upsetting his appointment when he was not made a party. The impugned order is set aside as regards the appellant."

A Division Bench of this Court in Scholars and Teachers Action Committee v. Andhra University (A.P.) 1996 (3) SLR 481 held that a writ petition to challenge the selected persons, without impleading the said selected persons, was not maintainable.

Recently in Arun Tewari v, Zilla Mansavi Shikshak Sangh, AIR 1998 SC 331 a similar point arose. The facts of the case may be stated in brief :

Recruitment of Assistant Teachers in Madhya Pradesh was governed by certain Recruitment and Promotion Rules. Certain scheme was to be implemented expeditiously and in order to expedite the implementation the respondent-State added a proviso. List of eligible candidates were obtained and all of them were interviewed by a Selection Committee under the Rules. A select list was thereafter prepared. Appointment letters were issued to the selected candidates. The writ petitioners therein challenged the provisions and process of recruitment of Assistant Teachers. The said writ petitioners did not make the Selected/appointed candidates, who were directly to be affected by the outcome of the result of the petition, as party-respondents. The Supreme Court, in this background held that passing of orders by the Tribunal before whom the petition was filed, without making the affected persons as parties was a serious infirmity. The Court held that on this ground alone the petition deserved to be dismissed and found fault with the Tribunal in entertaining the same.

It will thus appear from the aforesaid decisions, that it was necessary for petitioners to make the candidates empanelled in the list, who were bound to be affected by granting of a writ claimed by the petitioners, as party-respondents to the present petition. It may be pointed that all of them were immediately appointed. As has been pointed out in Prabhodh Verma ''s case (supra)" at least some of them in a representative capacity ought to have been made parties to the present writ petition. If some of them had been made parties or, if some of them had intervened on their own and got themselves impleaded as parties, perhaps the petition could have been considered on merits further.

The learned Counsel for the petitioners has however, relied on certain other decisions for contending that when the process itself is challenged it is not necessary for the petitioners to implead the persons, who have been empanelled or who have been brought on the select list. First he brought to my notice the decision in A. Janardhana Vs. Union of India (UOI) and Others, . In that case it was held that when no seniority was claimed by any one individual against another particular individual, it was not necessary for the petitioner to implead any particular individual as respondent. The petition could not be dismissed on the ground of absence of necessary parties. In para 36 of the said judgment the Court made the following very important observations :

"However, it clearly appears that same direct recruits led by Mr. Chitkara appeared through Counsel Shri Murlidhar Kao and had made the submissions on behalf of the direct recruits."

The Court further observed :

"Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground."

The contention which was negatived was absence of necessary parties in that case. It will thus be seen that in that case some of the persons likely to be affected were in fact before the Court and they had advanced their arguments. It was not that none, of the affected persons were made party to the petition. The Court observed :

"In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents."

It will thus be seen that the ratio of the said case does not lay down that affected party was not a necessary party. What was laid down was that if some of the persons appear in a representative the strict requirement of joinder of necessary parties capacity on behalf of the affected parties need not be insisted upon. In the present case not a single person, much less group from empanelled selected candidates has been made party.

In State of Himachal Pradesh v. K. C. Mahajan 1992 (2) SLR 30 a point arose about maintainability of the petition in absence of necessary parties. In that case a writ petitioner was questioning the validity of the Ordinance and the Act whereby he had been deprived of his further continuance in service. One Mr. Chauhan came to be appointed consequent to the suspension of the writ petitioner. The said suspension was stayed by the High Court on 12-6-1990. The petitioner was occupying post of Chairman of State Electricity Board. Mr. Chauhan was appointed on superannuation of the petitioner. The petitioner filed writ petition challenging the validity of the Act under which the appointments were to be made. Mr. Chauhan was not party in the writ petition. The Supreme Court said that as the writ petitioner was questioning the validity of the Ordinance and the Act itself, the question of making Chauhan as party did not arise. Mr. Chauhan was not a necessary party because what was challenged was the vires of the Act/Ordinance. It will '' thus be seen that that case has no application to the facts of the present case. Sri Sudhir the learned Counsel for the petitioners then tries to seek support from the decision in Union Territory of Chandigarh v. Dilbagh Singh 1993 SLR 451. In the said case the select list was cancelled by the Chandigarh administration. The said select list was found to be prepared in unfair and injudicious manner. Corruption was alleged in the said case. Before operating the said select list the administration itself on enquiry found that mal practices were committed in preparation of the list and hence cancelled the said list and therefore constituted a new Selection Board to prepare a fresh list. The persons, who were in the cancelled select list challenged the action on the ground that they were not heard before cancelling the said list. It was also urged that the Members of the Selection Board, who prepared the impugned list were not given opportunity of being heard. In that background it was observed that the persons, who were in the selection list prepared by the First Selection Board, had no indefeasible right to be appointed in such a post. Therefore such candidates, who were in the list cannot claim that they have a right to be heard before the Selection List is cancelled. This case has no application whatsoever to the facts of the present case.

Another case relied upon is Pritpal Singh v. Slate of Haryana 1949 (4) SLR 547. The selection which was the subject-matter of writ petition in that case was challenged on serious allegations in constituting the Board. The answer sheets of written examination were destroyed before the results were declared. There was no material whatsoever before the Court to find out as to how the candidates were brought in the select list. All this selection was challenged. Persons in this selection list were not made parties. The Supreme Court observed :

"We appreciate that it may be that : there arc among those selected some who will, consequently, suffer as a result of this order. There is, regretably, considering the state of the selection records, no way in which such men can be identified. The public interest put weighs their interest. The directions that we shall now give shall enable them to compete once again with those who had sought selection with little or no disadvantage as a result of the years that have passed."

It will thus be seen that the material record i.e., necessary papers were destroyed before the results were declared. It was in that situation that the whole selection was quashed, as there was no material whatsoever to uphold the selection. Thus it would have been futile exercise to join the persons, who were in the select list, they could not have brought the destroyed papers back before the Court. Therefore, the said case is also singularly on its facts and does not lay down as such in all cases where parties likely to be affected arc not joined in the writ petition.

Mr. Sudhir, the learned Counsel for the petitioners also relied upon the decision in B. Gopalaiah and Others Vs. Government of Andhra Pradesh and Another, . The said case was decided by O. Chinnappa Reddy, J. (as he then was). It was held in the said case that when a writ petition has been filed on behalf of one class of persons as against another class of persons on the ground of discrimination, it is not necessary that each of the persons in another class has to be made as a party. If the discretion arises on the ground of a scheme formulated by the Government, the Government alone is a necessary party because what is cliallenged is the scheme. It is clear that this lias no application whatsoever to the facts of the present case as this is not a petition filed by one class against other class as such.

Lastly, Sri Sudhir, the learned Counsel for the petitioner, brings to my notice the decision in Satpal v. State of Haryana 1995 (3) SLR 787. The said case also does not lay down any principle that non-joinder of persons, likely to be affected, as respondents does not have any affect on the maintainability of the writ petition. On the other hand from para 4 of the said judgment, it is clear that the Supreme Court permitted the advocate representing the persons, who were likely to be affected to place their case in extemo to enable the Supreme Court to appreciate the point of view of those persons. The facts of that case were also very unique. There were no Rules or Procedures prescribed for selecting the candidates. The whole process was arbitrary and not based on any Rules. Further more, it was found that 600 candidate were interviewed on a single day by the Selection Committee. The Supreme Court found that this was humanely impossible and clearly disclosed some mal-practices. It was in such circumstances that the selection was struck down, though the candidates, who were selected were not made parties. However, as pointed out the learned Counsel on behalf of the persons, who were likely to be affected intervened himself and had argued the matter.

It will thus be seen that none of the cases relied upon by Mr. Sudhir are of help to justify the non-joinder of the persons, who were in the impugned empanelled list. It has already been pointed out that petitioner seeks a writ for quashing the said list and further seeks a direction that petitioners'' claim should be considered for empanelment in the said list. It is manifest that in such a situation the persons enlisted would be affected parties and -were necessary parties to the petition. As has been pointed out in Prabodh Verma''s case (supra) at least some of the enlisted persons could have been joined, in a representative capacity, hi fact as far back as in Ramchandra Shankar v. State of Maharashtra 1974 (1) SLR 470 the Supreme Court laid down the principle which continues to hold the field even now. In that case some persons, who were made parties to the petition, were not promoted. It was pointed out by the Supreme Court that those persons were not necessary parties to the petition as they were not likely to be adversely affected vis-a-vis the petitioners even if the impugned examination procedure was declared invalid. The Court held that all those who are necessary Parties were before the Court and therefore there was no impediment in the way of the Court proceeding to decide the questions raised for its determination. Thus persons who were likely to be parties as they were necessary parties. The persons who were only. interested in supporting the procedure of promotion but were not likely to be affected were not made parties and they were found as not necessary parties.

In view of the aforesaid discussion, I am of the view that the writ petition has to be dismissed on the ground that necessary parties i.e. the persons empanelled in the impugned notification, or at least some of them in a representative capacity are not before the Court.

Sri G. Ramachandra Rao, the learned Counsel for the respondents is justified in contending that the writ petition has to be dismissed on one more ground that petitioners have participated in the process which they have now challenged as unfair to them. Having participated in the said process and having taken their chance to get selected, they cannot turn round and dispute the correctness of the process. In Madan lal v. State of Jammu and Kashmir 1995 (2) SLR 209 it was observed :

"It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted, hi the case of Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others, , it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging ., the said examination, the High Court should not have granted any relief to such a petitioner. (Para 9)

Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful.'''' (Para 10)

From this it is quite clear that the petitioners who had participated in the,, whole process and did not raise any objection at that time, cannot now challenge the said process after finding themselves unsuccessful. The writ petition deserves to be dismissed on this ground also. As pointed out already in fact most of the petitioners have been already promoted and they participated in the process of promotion even subsequently. Some of them were enlisted in the very list which is impugned after they made the representations later on. This factual aspect is also sufficient to dismiss the writ petition.

On merits also the points which have been raised in the present writ petition were all negatived by a Division Bench of the Madras High Court in Union Bank Officers'' Congress, Tamil Nadu v. Union Bank of India, W.A.No.667 of 1998 (H.C. of Madras). The said decision was given by Justice Ratnavel Pandian (as he then was). The Bench negatived all the contentions which have been raised now. I find no reason to disagree with the said decision. Following the same, this writ petition, even if considered on merits, will not stand.

In the circumstances, the writ petition is dismissed. No order as to costs.