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Judgment
Jawahar Lal Gupta, J.—The petitioners in these two writ petitions viz. C. W. P. Nos. 15645 of 1990 and 5831 of 1991, are working in the State Bank of India. They claim the benefit of the Army Service rendered by them during the, period of emergency prior to their appointment in the Bank. A/e they entitled to this benefit ? To answer this question, it is necessary to refer to few facts. Learned counsel for the parties have referred to the facts as stated in C. W. P. No. 5831 of 1991. These may be briefly adverted to.
The petitioner was selected for the grant of Emergency Commission and he reported for pre-commission training on April 12,1983. He completed this training and was commissioned as an Officer on February 9, 1964. On July 1,1969, the petitioner was released from the Army. On May 29, 1972, he was appointed as a clerk in the Bank. He claims the benefit of military service rendered by him from April 12, 1963 to July 1, 1969, viz six years, two months and 19 days towards the determination of seniority, releasing of increments, further promotion as also pension etc. In other words, the petitioner claims that he should be deemed to have been appointed as a clerk in the Bank on March 10, 1966, and all consequential reliefs should be granted to him on that premises. It is averred that it was obligatory on the part of the authorities to grant the benefit of military service and that the action of the respondents in not granting the said benefit was highly arbitrary and unfair. The petitioner also states that the purpose of granting the benefit of service is to compensate the persons for the opportunities they missed in the civil career The petitioner claims that he had right to be promoted to Junior Management Grade-I Scale w.e.f. February 12; 1974, to the Middle Management Grade-III, w e. f. March I, 1985., The petitioner further claims that he is entitled to be promoted to the Senior Management Grade Scale IV w. e f. March 1, 1989. He avers that the action of the respondents in not granting the requisite benefits is violative of Articles 14 and 16 of the Constitution and is also contrary to the instructions is used by the Government. On these premises, he prays for the issue of a writ in he nature of mandamus directing the respondents to grant him the benefit of military service.
A written statement has been filed on behalf of respondent Nos. 3 and 4. It has been inter alia averred that the Government had promulgated statutory rules called the Released Emergency Commissioned officer and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1967 for regulating the reservation of vacancies in the Central Services and posts in Class I and Class If Services. These rules came into force on January 29, 1966 and were operative till January 29, 1971. According to these rules, 23% of the permanent vacancies in Central Services and posts in Class I Non-technical Services and 30% of the permanent vacancies in Class II Non technical Services to be filled by direct recruitment had to be reserved for being filled from amongst the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed forces of the Union Vide letter dated January 29, 1966, the Government advised the Banks including the State Bank of India to consider the desirability of making the reservation for appointment to the posts in the Officers'' cadre by direct recruitment. On June 30, 1966, the Bank decided to reserve 25% of the vacancies in respect of recruitment to the cadre of Probationary Officers in pursuance to the advice of the Government of India. Probation by Officers appointed against the reserved vacancies were to be given the benefit of Army service towards the fixation of pay and seniority. The Government of India had thereafter r promulgated the rules known as Released Emergency Commissioned Officers and Short Service Commissioned Officers (Reservation of Vacancies) Rules, 1971. These rules came into effect on January 29, 1971 and remained in force till January 29, 1974. However, so far as the State Bank of India is concerned, it did not make provision for reservation of vacancies for the Released Army Personnel except in case of the Probationary Officers.
It has been further averred that since the petitioner had not been recruited as a Probationary Officer against a reserved vacancy. he was not entitled to the benefit of decision taken by the Bank on June 30, 1966. However, the Bank had taken a decision on January 1, 1972 to grant the benefit of pay to the Ex-Aimy Personnel. This benefit was accordingly given to the petitioner,
The claim of the petitioner with regard to the grant of benefit in the matter of seniority etc, has been controverted on the above premises.
I have heard Mr Rameshwar Sharma, learned counsel for the petitioner and Mr. R. K. Chhibber, learned counsel for the respondents.
Mr. Sharma has contended that in view of the statutory provisions of the rules referred to above and the decision of the Bank to protect the pay of its employes, the petitioner was entitled to the re-fixation of his seniority and grant of further promotions etc.
The claim made on behalf of the petitioner has been controverted by Mr. R K. Chhibber, learned counsel for the respondents.
At the outset, Mr. Sharma, learned counsel for the petitioner was asked if be had submitted any representation to the Bank for the grant of the benefits claimed by the petitioner after his recruitment as a clerk on May 29, 197?. He candidly admitted that only one representation had been submitted by the Secretary of the All India Released Defence Officers Welfare Association to the Prime Minister of India on September 25, 1986. Learned counsel conceded that no representation had been submitted by the petitioner personally. It is, thus, clear that the petitioner had not ever raised any claim for the grant of benefit of the military service rendered by him from May 29, 1972 when be joined service till April 18, 1991 when he filed the present writ petition. Even if the representation referred to above is taken into consideration, it is apparent that it was submitted on September 25, 1986 to the Prime Minister of India and not to the Bank. Apparently, the writ petition is highly belated and deserves to be dismissed on this short ground alone. However, since the Bank had not raised a plea in this behalf, it is not considered appropriate to dismiss the writ petition on the ground of laches alone.
This brings me to the merits of the case The State Bank of India was constituted by an Act of Parliament. The State Bank of India Act, 1955 (Act No. 23 of 1955) was promulgated by the Parliament on May 8, 1955. Provision was made for the constitution of the Bank and for all other matters connected there with or incidental thereto In Section 43 of the Act, it was inter alia provided that "the State Bank may appoint such number of officers, advisers and employees as it considers necessary or desirable for the efficient performance of its functions and determine the terms and conditions of their appointment and service".
On a perusal of the provisions of the Act, it appears that the State Bank is an autonomous body. It has the right to appoint officers and employees and determine the terms and conditions of their service. u/s 49, the Central Government has been empowered to make Rules so as to give effect to the provisions of the Act. u/s 50, the Central Board can make Regulations with the previous sanction of the Central Government which may not be inconsistent with the Act and the Rules. It is the admitted position that Service Rules have been framed by the Bank from time to time. However, there is no Rule or Regulation framed under the provisions of Section 49 or 50 providing for the grant of benefit of military service to the employees or officers of the Bank. Further, except the orders referred to above, no provision has been made by the Bank even by issuing any order providing for the grant of benefit of military service to its officers or employees. As already noticed, vide order dated June 30, 1966, the Bank had decided to give the benefit of seniority etc. to the Probationary Officers. The expression "Probationary Officer'' has been defined in Rule 3(K) of the State Bank of India (Supervising Staff) Service Rules to mean "a person appointed as such on Probation to the Officers'' Grade I".
It is the admitted position that the petitioners in these two cases were not recruited as Probationary Officers. Besides the order of June 13, 966, there is no other order or decision of the Bank providing that persons other than probationary Officers are entitled to the benefit of military service towards the fixation of their seniority etc. In this view of the matter, it is clear that neither there is a Rule nor Regulation nor any order under which the petitioner may be entitled to the benefit of military service towards the fixation of seniority. The only benefit admissible was in the matter of protection of pay granted by the Bank vide order dated January 1, 1972. This benefit was admittedly been given to the petitioner .
The power to determine the terms and conditions of service has been conferred by an Act of Parliament on the State Bank of India. It is, thus the right of the Bank to determine the conditions of service of its employees or officers. No order granting the benefit of military service towards the fixation of seniority and further promotion etc. to its employees or officers having been issued by the Bank except to the extent indicated above, the petitioner has no right to claim the issue of a writ of mandamus for the grant of these benefits. It is correct that the Central Government and the Central Board of the Bank are competent to frame Rules and Regulations respectively. However, neither any Rules have been framed u/s 49 nor any Regulations have been promulgated u/s 50 of the Act. There is nothing which may entitle the petitioner to the benefits claimed by him. There is not even an executive order conferring such a benefit. In such a situation, there is no right with the petitioner nor a corresponding legal duty imposed on the Bank which may entitle him to claim the issue of a writ of mandamus to the respondents.
Mr. Sharma, learned counsel for the petitioner contended that the Central Government had framed Rules in 1967 and 1971 for the grant of benefit of military service. It is undoubtedly correct. However, the Rules framed by the Central Government relate to civil posts. The Central Government has conferred these benefits on persons holding posts in Class I and Class II Service under it. The petitioner does not belong to that class Consequently, he cannot claim any benefit under those Rules. Further, possibly the Bank could have adopted these Rules in exercise of the power u/s 43 or u/s 50. It has not done so Consequently, the petitioner can derive no advantage from the Rules promulgated by the Central Government. There being no Rule, Regulation or Order off the Bank to support the claim made by the petitioner, no relief can possibly be granted to him. The terms and conditions of service have to be determined by the employer. An employee can claim a right only if there is a Rule, Regulation or an executive order conferring the benefit on him. In the absence of such a provision, the claim made by the petitioner is wholly misconceived and cannot be sustained.
No other point was raised.
in so far as Civil Writ petition No. 15645 of 1990 is concerned, an effort was made by the petitioner to show that there was no delay The petitioner had joined as an Officer Grade II in 1974 and he had submitted various representations It appears that the petitioner had submitted a representation dated February 6, 1987 a copy of which has been produced as Annexure p/9 It was rejected by the Bank vide order dated April 4, 1987. It is claimed that certain other representations were also submitted The writ petition was ultimately filed on December 5, 1990. Prima facie, even this petition was highly belated as the petitioner had submitted the first representation almost 13 years after his joining service. Be that as it may, since the petitioner''s claim is not tenable on merits, the quashing of delay is not of paramount importance.
Consequently, there is no merit in both the writ petitions. These are accordingly dismissed. However, there will be no order as to costs.