Pankaj Prakash & Anr vs United India Insurance Company Limited & Anr

Tejas Karia, J

The present Writ Petition has been filed under Article 226 of the Constitution of India, 1950 ("Constitution") challenging the Promotion Policy for Officers-2006 ("Impugned Policy")of United India Insurance Company Ltd., Respondent No. 1, inter alia, with the following prayers:

(i) "Prohibit the Respondents from conducting the 'Promotion Exercise' 2022 without informing the numerical marks obtained under last three years of APAR with intent to habitually manipulate APAR marks as shown in evidence under Annexure P-6 (Page 125) supplied by Respondent No. 1 in judicial proceedings before High Court of Allahabad (now transferred to this Hon'ble Court by Hon'ble Supreme Court) instituted by Petitioner-1

(ii) Issue a writ of Mandamus directing / holding as illegal and quashing Rule 14.1 of promotion policy (Page 47) r/w Rule 14A(h) of 12th amendment of Respondent - 1 company (Page 80) vide which Interview Committee (a) holds knowledge of marks obtained by each competing officer in all material parameters, (b) with right to alter the marks obtained by Officers in APARs over last three years, with (c) further right to adjust interview marks vis-à-vis total marks, & also (d) amend total interview marks in guise of regional imbalance despite company being a Pan-India PSU with all India transfer policy,

(iii) Issue a writ of Mandamus directing / holding as illegal / quashing the Rule 12.2 of promotion policy (Page 46) r/w Rule 14A(h)(iv) of 12th amendment of the Respondent-1 company as illegal whereby the Promotion Committee and Interview Committee is same and it's promotion order is final,

(iv) Quash the Rule 14A(e) of promotion policy (4th amendment at Page 54) of Respondent-1 to the extent it provides for lower qualifying marks to SC / ST candidates for promotion from Scale III to IV and Scale IV to V in contravention of the express rules issued by Respondent-2 vide circular dated 18.02.2014 r/w Rule 15 of the Promotion Policy

(v) Quash the Rule 14(A)(f) r/w 16th amendment Notification dated 17.03.2022 (Page 94) vide which Respondent-1 refuses to fill notified merit vacancies under Fast Track channel unless number of candidates qualifying written exam is 1.5 times the total notified vacancies and thus reducing total vacancies to 66.67% of Written qualifying Officers,

(vi) Quash the Notification dated 04.04.2022 (Page 101) of Respondent-1 vide which special training with paid leave from office is extended to OBC (Other Backward Class) Officers dehors the law that reservations/concessions in promotions are not available under OBC category in any manner,

(vii) Direct the Respondent-1 to immediately remove such office bearers of recognised unions at Central / Regional / State level who are holding posts as Branch In-charges in contravention of it's rules (Page 129)

(viii) Quash the arbitrary amendments to weightages of promotion parameters (Page 125) in present year with direction to adopt any reasonable merit based weightage of any earlier year, as weightages are altered each year to fix the promotion of pre-identified officers."

Petitioner No. 1 is working as Manager at Scale IV with Respondent No. 1. Petitioner No. 2 is working as Assistant Manager with Respondent No. 1 and alleges that he is being victimized for non-cooperation in the corrupt practices of the senior officials of Respondent No. 1 and is being denied promotion based on the Impugned Policy.

The Petitioners had filed the present Writ Petition in view of the notification dated 29.03.2022 which stated that Respondent No. 1 will commence promotion exercise 2022 ("Promotion Exercise") from 12.04.2022 onwards in accordance with the Impugned Policy. The Interim Application, CM APPL. 21503/2022, filed by the Petitioners for stay of the Promotion Exercise pending final disposal of the present Writ Petition was disposed of as not maintainable by this Court vide Order dated 10.05.2022, while reiterating that any promotions made to Scale-5 and Scale-3 within Respondent No. 1 shall be subject to the outcome of the present Writ Petition.

SUBMISSIONS ON BEHALF OF THE PETITIONERS

The learned Counsel for the Petitioners made the following submissions:

4.1 The Impugned Policy is arbitrary, discriminatory and ultra vires the Constitution and was incorporated to promote and protect corrupt and inefficient officers within Respondent No. 1 and to curtail the promotion of the honest candidates like the Petitioners.

4.2 Respondent No. 1 framed the Impugned Policy in a manner which is arbitrary, discriminatory and then amended the Impugned Policy with patent mala fide and gross illegalities to obtain promotions of pre-identified candidates and discriminates against the Petitioners and many other officials of Respondent No. 1.

4.3 The Interview Committee for deciding promotions within Respondent No. 1("Interview Committee")has access to the Written Test scores, Annual Performance Appraisal Reports ("APARs") and Seniority Marks of all candidates up for promotion. As the Interview Committee has access to all the scores of all candidates up for promotion before the interviews for promotions are conducted, the Interview Committee is manipulating results so as to promote pre-identified candidates and discriminate against the Petitioners.

4.4 Respondent No. 1 did not disclose the APARs of its officers or the methodology adopted for conversion of APAR gradings into numerical marks, thereby facilitating the promotion of pre- identified candidates. This Court, in Paramjit Singh v. IOCL & Ors., W.P.(C.) 823/2012, has underscored the significance of ensuring that an interview committee does not possess prior knowledge of the written test scores or other evaluation marks of candidates under consideration for promotion.

4.5 In the present case, the Interview Committee is, as a matter of policy, required to be aware of the relevant scores of all candidates eligible for promotion. Accordingly, the Impugned Policy is discriminatory and liable to result in manipulation so as to favour pre-identified candidates over meritorious ones.

4.6 The Promotion Exercise was manifestly mala fide and unlawful mechanism intended to secure the promotion of pre-identified candidates by permitting prior knowledge of the marks obtained by each officer in all material parameters, coupled with the authority to alter APAR-related marks and adjust interview marks vis-à-vis the overall score. Notwithstanding Respondent No. 1 being a pan- India general insurance company, the Impugned Policy has been structured to facilitate arbitrary preferences and accommodate less meritorious but favoured officers. Reliance was placed on the decision of the Supreme Court in Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, to submit that prior knowledge of written and other marks by an interview committee during the interview process is indicative of mala fides.

4.7 Rule 12.2 of the Impugned Policy provides that the Interview Committee shall assume the role of the Promotion Committee upon conclusion of the interview process. However, that promotion and interview constitute distinct functions, and the jurisdiction of the Interview Committee ought not to extend beyond the conduct of interviews.

4.8 Rule 14.2 (d) of the Impugned Policy entrenches the arbitrary nature of the Impugned Policy and the Promotion Exercise of Respondent No. 1, since a long time, without any administrative remedy. In order to escape personal liability for the ex-facie mala fides, the illegalities have been incorporated as the Impugned Policy. Rule 14.2(d) of the Impugned Policy is as under:

"14.2 (d)-The Committee shall then forward the complete Promotion List, so prepared to the Appointing Authority. Such selection of officers for promotion by the Committee shall be final."

4.9 The Ministry of Finance has, vide direction dated 18.02.2014, stipulated that relaxations or concessions in promotion by selection shall be confined to Scale III alone. It is, however, contended that Respondent No. 1 is extending such concessions to Scheduled Castes ("SC") and Scheduled Tribes ("ST") candidates in promotions to Scales IV and V, in contravention of Rule 15 of the Impugned Policy as well as the aforesaid direction dated 18.02.2014 issued by the Ministry of Finance.

4.10 After earmarking and determining vacancies under the Fast Track Channel (Merit Based), Respondent No. 1 has, by virtue of Rule 14A(f) of the Impugned Policy, reserved unto itself the authority to restrict the total number of vacancies under the said channel to 66.67% of the officers qualifying the Written Test, which is ex facie mala fide.

4.11 Prayer Clause (vi) seeks the annulment of the Notification dated 04.04.2022 issued by Respondent No. 1, to the extent that it provides for paid leave and special training to officers belonging to the Other Backward Class("OBC")category for participation in the Promotion Exercise. No reservation in promotions for OBC candidates is sanctioned under any law, rule, or direction issued by the Ministry of Finance. Consequently, no such special advantage could lawfully have been conferred upon OBC category officers after recruitment in Respondent No. 1, and the said Notification dated 04.04.2022 is therefore assailed as being contrary to law and public policy.

4.12 In view of the foregoing submissions, it was prayed that the present Writ Petition be allowed in terms of the reliefs sought in the prayer clause thereof.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

The learned Counsel for the Respondents made the following submissions:

5.1 The Writ Petition is liable to be dismissed being an abuse of the process of law. The Petitioners have approached this Court with unclean hands and have adopted mutually inconsistent positions inasmuch as, while assailing the Impugned Policy, they simultaneously seek promotion thereunder.

5.2 The Petitioners have previously secured promotions under the Impugned Policy and are, therefore, estopped from impugning its validity. Prayer Clause (i) has, in any event, become infructuous, the Promotion Exercise having already been concluded and the promoted officers having assumed charge in their respective promotional posts.

5.3 The allegation that the amendments to the Impugned Policy were introduced to facilitate the promotion of pre-identified candidates in consideration of any quid pro quo is unfounded and unsupported by any evidence. In fact, the amendments to the Impugned Policy have been incorporated in duly convened Board meetings of Respondent No. 1 and in furtherance of its institutional interests. Since the appraisal year 2013-14, Respondent No. 1 has been disclosing the complete contents of APARs annually, and that the allegation regarding non-disclosure and manipulation of scores is factually incorrect.

5.4 The Petitioners' contention that the number of vacancies notified under the Fast Track Channel of a promotion exercise cannot be altered after such notification is misconceived. Rule 14A(f) of the Impugned Policy itself prescribes the manner in which vacancies under the Fast Track Channel are to be determined. Consequently, the vacancies initially notified for a given promotion exercise are provisional and remain subject to Rule 14A(f) of the Impugned Policy and the same would not amount to a change in the rules after commencement of the Promotion Exercise.

5.5 In any event, during the Promotion Exercise, 16 vacancies were available under the Fast Track Mechanism, and 24 candidates qualified in the Written Test and were declared eligible for the interview process. However, Petitioner No. 1 did not qualify in the Written Test. Rule 14A(f), therefore, had no bearing on Petitioner No. 1 not being granted promotion.

5.6 There exists no legal prohibition against the provision of pre- promotion training to backward classes, including officers belonging to the OBC category, and that such training has been imparted within Respondent No. 1 for a considerable period of time. The Notification dated 04.04.2022 did not grant any additional leave to OBC candidates, and that the Petitioners'submission to the contrary is incorrect.

5.7 Respondent No. 1 is entitled, as a welfare measure, to relax the eligibility criteria for SC and ST candidates by up to 10%, and that such relaxation is in consonance with Article 335 of the Constitution.

5.8 In view of the aforesaid submissions, it is contended that the Impugned Policy is not ultra vires the Constitution and that the Writ Petition is liable to be dismissed.

ANALYSIS AND FINDINGS

We have heard the learned Counsel for the Parties.

The Petitioners contend that the present Writ Petition has been instituted to highlight the alleged illegality of the Impugned Policy and to demonstrate that Respondent No. 1 has, by framing the said policy in an arbitrary, unjust and discriminatory manner, enabled the promotion of corrupt and ineligible officers.

Learned counsel for the Petitioners submitted that, under the Impugned Policy, the Interview Committee is required to have access, prior to the conduct of oral interviews, to the Written Test scores, APARs and seniority marks of all candidates under consideration for promotion. It was contended that such prior access enables the Interview Committee to manipulate the interview results to favour pre-identified candidates and discriminate against the Petitioners. Reliance was placed on the decisions in Ashok Kumar Yadav (supra) and Paramjit Singh (supra) to submit that an interview committee being apprised of candidates' scores in earlier stages of selection is indicative of mala fides.

The Petitioners are also aggrieved by the provision for Fast Track Promotions extended to officials of Respondent No. 1 on a seniority basis, as well as by those provisions of the Impugned Policy which permit relaxation of conditions for SC and ST candidates and provide for pre- promotion training to OBC candidates.

Learned counsel for the Respondents submitted that the Petitioners had previously received promotions under the Impugned Policy and, having failed to secure promotion in the impugned Promotion Exercise, have now chosen to challenge the constitutional validity of the said policy. It was contended that, having availed the benefits of the Impugned Policy on earlier occasions, the Petitioners are estopped from asserting that the policy is ultra vires the Constitution.

It was further submitted on behalf of Respondent No. 1 that no illegality has been committed either in relaxing the criteria for promotion of SC and ST candidates or in providing pre-promotion training to OBC candidates. According to the Respondents, there exists no legal impediment to the introduction of welfare measures for backward communities. It was also submitted that vacancies initially notified for fast-track promotion on a seniority basis are provisional and remain subject to Rule 14A(f) of the Impugned Policy, so as to ensure that promotions are not granted solely on the basis of seniority but are also conditioned by merit and competency. Such an arrangement, according to the Respondents, does not amount to a change in the rules after commencement of the Promotion Exercise.

The principal grievance urged by the Petitioners against the Impugned Policy is that the Interview Committee is given access to the Written Test scores, APARs and seniority marks of all candidates under consideration in a particular promotion exercise conducted by Respondent No. 1.

It is alleged that such prior awareness enables the Interview Committee to manipulate interview scores to secure the promotion of pre- identified candidates. It has, however, been brought on record that the Petitioners are already in possession of the methodology for converting alphabetical APAR ratings into numerical marks, and that such information is made available by Respondent No. 1 to any candidate seeking the same.

Despite making serious allegations of corruption in the promotion process, the Petitioners have failed to place any material on record to substantiate the same. The Petitioners have relied upon the decisions in Ashok Kumar Yadav (supra) and Paramjit Singh (supra) in support of their contention that an interview committee being aware of the scores secured by candidates in earlier stages of selection is mala fide. However, the said decisions are distinguishable on facts and do not lay down the proposition canvassed by the Petitioners.

Mere knowledge by the Interview Committee of the Written Test scores, APARs and seniority marks of candidates eligible for interview cannot, in the absence of cogent evidence, lead to the inference that the interview results were manipulated so as to favour pre-identified candidates at the expense of the Petitioners.

In the present case, the Petitioners have neither challenged the allocation of marks nor demonstrated that the interview component carries such disproportionate weight as would enable arbitrary selection solely because the Interview Committee is aware of the marks secured by candidates in earlier stages of the selection process.

The Petitioners have also failed to demonstrate any statutory interdiction against the Interview Committee acting as the Promotion Committee upon conclusion of the interview process. In the absence of any material establishing prejudice, arbitrariness or conflict of interest arising from such an arrangement, Rule 12.2 of the Impugned Policy cannot be held to be unconstitutional merely because the same body performs both functions.

Insofar as the challenge to Rule 14A(f) of the Impugned Policy is concerned, we are unable to accept the Petitioners' submission that the number of vacancies notified under the Fast Track Channel in a promotion exercise cannot be altered after such notification. Rule 14A(f) has been framed to ensure that promotions are not granted solely on the basis of seniority to candidates who do not satisfy the prescribed standards, but are instead conditioned by merit and competency, while maintaining an appropriate balance between the claims of senior candidates and the operational interests of Respondent No. 1.

In the Promotion Exercise in question, 16 vacancies were available under the Fast Track Mechanism, and 24 candidates qualified the Written Test and were declared eligible for interview. However, Petitioner No. 1 failed to qualify the Written Test. Rule 14A(f), therefore, had no bearing on the denial of promotion to Petitioner No. 1.

Respondent No. 1 is also entitled to relax, as a welfare measure, the criteria for promotion in favour of SC and ST candidates. The voluntary relaxation of eligibility criteria by up to 10% for such candidates, as contended by Respondent No. 1, cannot be said to be contrary to law and is in consonance with Article 335 of the Constitution.

Respondent No. 1 is likewise not precluded from providing OBC candidates with pre-promotion training. The challenge to such training is also devoid of merit, as the Petitioners have failed to demonstrate any statutory prohibition against the same or to establish that it confers an impermissible advantage in the promotion process so as to vitiate the Promotion Exercise.

In view of the foregoing, we are unable to hold that the Impugned Policy is either arbitrary or discriminatory qua the Petitioners. We are not persuaded by the submissions advanced on behalf of the Petitioners.

In view of the foregoing discussion, none of the reliefs sought by the Petitioners can be granted in the present Writ Petition. Accordingly, the Writ Petition, along with the pending applications, is dismissed as being devoid of merit.