S. Rajagopalan vs Assistant General Manager, Canara Bank

Mishra, J.—Petitioner herein is an employee under the Respondent-Bank, a Government of India undertaking in terms of the Banking

Companies (Acquisition and Transfer of Undertaking) Act, 1970, hereinafter referred to as ''the Act''. He joined the services of the bank in the

year 1970 and was promoted to the officers'' cadre of the bank with effect from 1.4.1977. According to the Petitioner, the promotion policy of the

bank in the year 1984 was published in the memo 142/84 dt. 20.3.1984 for filing up the vacancies from Scale I of officers cadre to scale II

thereof. The policy stipulated that all the accountants promoted or appointed as probationary officers on or before 1.1.78 were eligible for

promotion but incorporated in it, a formula of weightage for service and for performance including marks and leave marks, etc. as well as marks

for educational qualifications. Petitioner felt that conditions aforementioned were arbitrarily introduced and accordingly represented to the

Competent Authority. His petition, however, was rejected and ignoring all norms which as a State under Article 12 of the Constitution of India, the

Respondent was obliged to follow, it proceeded to promote and appoint officers from Grade I to Grade II which gave unfair advantage to several

of the juniors of the Petitioner.

In the counter filed on behalf of the Respondent it is stated that in exercise of the powers conferred by Section 19 of the Act read with Sub-

section 2 of Section 12 thereof, the Board of Directors of the Respondent-Canara Bank in consultation with the Reserve Bank of India and the

previous approval and sanction of the Central Government made certain Regulations in the year 1979 called Canara Bank (Officers) Service

Regulations, 1979, laying down the terms and conditions of service applicable to all officer employees of the Bank. The Regulations inter-alia

provide for matters relating to determination of Grades of Officers, categorization of posts, scales of pay, allowances, perquisites, fitment,

appointment, confirmation, probation, seniority and termination and the like. The officers employed in the bank accordingly were/are placed in four

grades depending upon their scale of pay, the Executive-Scale VII and Scale VI pay Rs. 3000-125-3500 and Rs. 2750-125-3250; respectively

Senior Management Grade-Scale V and Scale IV pay Rs. 2500-100-2700 and Rs. 2000-100-2400 respectively, Middle Management Grade

Scale III and Scale III and Scale II - pay Rs. 1800-75-2250 and Rs. 1200-70-1550-75-2000 respectively and Junior Management Grade-Scale

I pay Rs. 700-40-900-50-1100-EB-1200-60-1800. It is asserted in the said counter-affidavit that promotions for the year 1984 for all grades

and scales were effected according to the policy framed in terms of Regulation 17 of the Service Regulations (Memo No. 142/84 dt. 203.1984)

and having regard to the Government Guidelines on the subject. Likewise, the promotion policy for the year 1985 was laid down as in Memo No.

53/85 dt.19.2.1985. Regulation 17 which provides for promotion reads as follows:

17(1) Promotion to all grades of officers in the, Bank shall be made in accordance with the policy laid down by the Board (of Directors) from time

to time having regard to the guidelines of the Government, if any.

(2) For avoidance of doubts it is clarified that this Regulation shall also apply to promotion of any category of employees to Junior Management

Grade.

As on 1.1.1984, according the Respondent, the following guidelines laid down by the Government on 23.7.1979 were in existence:

1) The Board shall formulate the eligibility criteria and details of processes to be employed for promotion of officers from one scale/grade to

another, subject to the following provision. This should be done not later than 9 months from the appointed, date. Till such time as the new

promotion policy is formulated, the Bank may, subject to the approval of the Board, continue with the existing promotion practices.

2) Subject to the availability of vacancies all promotions whether from one scale to another or one grade to another shall be on the basis of merit

with weightages, if any, for seniority, educational/professional qualifications etc., as may be prescribed by the Board from time to time.

3) The minimum eligibility in terms of number of years of service for promotion from one Officer''s scale to another shall generally be as under:

a) From Junior Management Grade to Middle Management Grade Scale II-7 years of satisfactory service.

b) From Middle Management Grade - to Middle Management Grade - Scale II - 5 years of satisfactory service in Scale II,

c) From Middle Management - Scale III to Senior Management Grade - Scale IV - 5 years of satisfactory service in Scale II.

d) No Minimum service is prescribed for movement from scale IV to scale V,

e) Promotion from Senior Management Grade to Top Executive grade should be from those officers who have put in not less than 5 years of

satisfactory service in the senior Management Grade i.e. Scale IV and V together.

The above eligibility criteria may be relaxed suitably in case where the number of eligible officers is less than three times the number of posts

available in the next higher scale/grade. Besides the guidelines, according to the Respondent, it has been a practice of the bank to formulate the

policy applicable to a particular year after consultation with the recognised associations (Majority Trade Union of Officers) representing the

officers of the bank and arriving at an agreement with the Associations. The agreement entered into with the Associations with respect to

promotion policy of a particular year is always subject to the approval of the Board of Directors having regard to the reasonableness of the policy

and its conformity with the Government guidelines on the subject. Accordingly in such consultation with the Association it was decided that those

who completed 7 years of service, in Scale I as officers computed from the date of probation as on 1.1.1984 were awarded 4 additional marks;

officers, who were recruited as Chartered Accountants/Technical Field Officers and taw Officers 10 additional marks; restricted to 60 marks of

all. It is also stated in the counter that according to the guidelines of the Government in the first instance, only 483 officers had completed 7 years

of service and thus were eligible of promotion. The eligibility criteria were likewise in accordance with Clause 4 of the guidelines in order to bring

the number of officers in the zone of consideration to three times the number of vacancies identified. Officers who had completed 7 years of service

in Scale I were those who had fulfilled the eligibility criteria as per government guidelines and as such were preferable due to their seniority and

experience as per government guidelines. On account of relaxation of the eligibility criteria, several junior officers were also brought under eligibility

zone and therefore, it had become absolutely necessary in order to protect the chances of senior officers, who had completed the normal required

period to award 4 additional marks to them, and

It is submitted that appointment to Junior Management Grade Scale I is through two avenues namely recruitment from the open market and

promotions from the open market (sic) and promotions from clerical cadre. The minimum educational qualifications prescribed for direct

recruitment is a degree. Educational qualification stipulated for promotion from the clerical cadre is SSLC. Whereas, the minimum educational

qualification stipulated, for recruitment and appointment as Chartered Accountant/Technical Field Officer/Law Officers is a degree in the

respective disciplines. Thus it would be seen that in order to acquire qualifications stipulated these officers will have to continue their studies for 2

more years at the minimum than the others, who secure more degrees. Further, in the case of Law Officers, in addition to educational qualifications

these officers are recruited on the further stipulation that they have put in 3 to 4 years as practising lawyers. Thus these officers as compared to

regular officers enter the service late by about 4 to 5 years. But at the same time the institution is the beneficiary of the educational attainments and

the experience they gain while in their respective professions. It is, therefore, just and reasonable to give due weightage, to all these.

The fact that persons junior to the Petitioner have been promoted from Grade I to Grade II and that they got advantage of the weightage that

the bank introduced in favour of certain qualifications for promotions is not denied. Petitioner has alleged that the Respondent has violated Articles

16(1) and 14 of the Constitution of India and followed a system which was wholly arbitrary. Those who stand in a joint cadre and/or those who

are placed in an integrated service are entitled to equal opportunity of employment under Articles 16(i) and 14 of the Constitution of India. If the

employer does anything to provide quick promotional avenues to those who are lower down in the joint cadre and do not come within the range of

consideration of promotional benefits but are considered for promotion only by dint of such acts of the employer, it violates Articles 16(1) and 14

of the Constitution of India. Considering the case of reorganization of the judicial service of the State of Kerala in State of Kerala Vs. M.K.

Krishnan Nair and Others, the Supreme Court has stated as follows:

It was not and cannot be disputed that it is open to the State Government to constitute as many cadres in any particular service as it may choose

according to the administrative convenience and expediency and therefore, if in February, 1973, the State of Kerala thought of bifurcating its

judicial Service into two wings - Civil and Criminal - and further thought of framing separate Statutory rules governing the recruitment and

conditions of service of the incumbents of each wing, no fault could be found with any decision taken by it in that behalf....

The Supreme Court in that case took notice of the main contention that the separate cadres were brought into one and after integration prior to

February 12, 1973, all the magisterial posts alone were put into one category for a separate avenue of promotion leaving the officers and posts of

civil judiciary to carve out a different channel of promotion, and point out,

It is obvious that unless a complete integrated Judicial service in the manner suggested by the Petitioner had come into existence in the State of

Kerala there would be no question of invoking the concept of hostile discrimination under Articles 14 and 16 of the Constitution, for, it is well

settled that a question of denial of equal treatment or opportunity can arise only as between members of the same class. In other words, Article 14

or Article 16 will not be attracted at all unless persons who are favourably treated form part of the same class as those who receive unfavourable

treatment. Therefore, in our view, the principal question that arises for our determination in these appeals is whether, prior to the introduction of1

scheme of bifurcation as contained in Ex. P1 and P2. as a result of several Government Orders, statutory directions and Rules issued under

Articles 234 and 237 of the Constitution from time to time, there had come into existence one complete integrated Judicial Service in the State of

Kerala or not? In other words, had there been an integration of the posts of District Magistrate and Sub-Divisional Magistrates with those of sub-

Judges and Munsiffs as contended by the original Petitioner?....

The Respondent has not disputed the existence of the Petitioner in Grade I of the cadre of the Officers of the bank and that all those who were

considered for promotion belonged to one and the same cadre, but has pointed out that inequality of opportunity of promotion is not always

unconstitutional and in the instant case, according to it, the criteria correlated to the object for which the difference is made are justified on the

strength of a rational criterion. In State of Mysore Vs. M.H. Krishna Murthy and Others, . It has been pointed out that ""inequality of opportunity of

promotion, though not unconstitutional per se, must be justified on the strength of rational criteria correlated to the object for which the difference is

made. In the case of Government servants, the object of such a difference must be presumed to be a selection of the most competent from

amongst those possessing qualifications and backgrounds which entitled them to be considered as members of one class. In some cases, quotas

may have to be feed between what are different classes or sources for promotion on grounds of public policy. If, on the facts of a particular case,

the classes to be considered are really different, inequality of opportunity in promotional chances may be justifiable. On the contrary if the facts of a

particular case disclose no such rational distinction between members of what is found to be really a single class, no class distinction can be made

in selecting the best. Articles 14 and 16(1) of the Constitution must be held to be violated when members of one class are not even considered for

promotion"".

There are many cases decided by the Supreme Court and the High Courts including the case of K.S. Vora and Others Vs. State of Gujarat and

Others, and that of a Bench of the Patna High Court, to which I was a member, in the case of Bhagwat Prasad v. State of Bihar 1989 Lab IC

117, which had been approved by the Supreme Court in the case of Jagdish Parsad Sinha and Others Vs. Bhagwat Prasad and Others, . in these

words:

The High Court considered matter at great length and with care. The legal position as settled by several decisions of this Court was noticed.

Towards the end of the judgment the High Court has said 1989 Lab IC 117 at P 131:

We have referred to the judgment of the Supreme Court in K.S. Vora and Others Vs. State of Gujarat and Others, only to illustrate that the courts

have at no time ignored the interest of the employees and questioned the authority of the State to frame rules in terms of the proviso to Article 309

of the Constitution of India, but the courts have always taken notice of the fact that those who stood together and fell in line to proceed further

have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the

grade may not go down in due course of service. It is in this context that we have no hesitation in holding that Rules in the notification dt.

18.11.1986 are ultra vires Articles 16(1) and 14 of the Constitution.

We do not propose to predicate into what is alleged to be the mala fide of the Respondent State inasmuch as after the judgment of this Court in

C.W.J.C. No. 2956 of 1975, the Minister of State decided to find means to disintegrate the already integrated cadre or the Chairman of the

Legislative Council, haying no apparent role in the process of making Rules in terms of proviso to Article 309 of the Constitution appeared and

influenced the process. We refrain from going into this aspect, for we think, with our conclusion as above the upper division of the subordinate

Educational Service shall continue to have the same respect as it got from the judgment of this Court in C.W.J.C. No. 2956 of 1975 and no one in

the Government shall in future again attempt to deny to the members of the said service their due rights for promotion to the selection grade and

other higher posts.

In course of hearing of the matter, counsel for the State was not able to dislodge the conclusion that bifurcation was the outcome of an attempt to

provide quick promotional avenues to those who were lower down in the joint cadre and would not have come within the range of consideration

for promotional benefits but by bifurcation became entitled to such benefits. The High Court, in our opinion, rightly found fault with such action.

Law is thus candid and clear that those, who are in integrated cadre and are subject to same set of regulations must be treated as equals. The

moment there is any attempt to deny the benefits of a position in the rank held by a certain person, Articles 14 and 16(1) of the Constitution are

attracted. In Damodaran v. Paul 1991 Writ L.R. 436 a Bench of this Court to which I was a member, has considered a case in which Sub-

Inspectors of Police belonging to two separate cadres were pooled for promotion in the general cadre as in the instant case and a question arose

whether there is any discrimination or arbitrariness involved in it. this Court has held, ""it is well settled that starting from a common point in service,

employees'' may take two different routes until they again meet at a further point arid from there proceed together and once they are pooled

together and are ranked in the order of seniority they must march ahead together strictly in accordance with the rules; that are in accordance with

Articles 14 and 16(1) of the Constitution of India.

It is not clear from the guidelines in the instant case, which say, subject to the availability of vacancies all promotions whether from one scale to

another or one grade to another shall be on the basis of merit with weightages, if any, for seniority, educational/professional qualifications, etc. as

may be prescribed by the Board from time to time, that in a particular year, officers possessing a particular qualifications are given weightage or in

any particular year, just for convenience the bank would introduce different qualifications and different assessments and accordingly, apply the rule

of selection so that some who possess a qualification which otherwise is riot a condition of eligibility, benefits themselves at the cost of others, who

are senior to them. There is no attempt on behalf of the Respondent to bring on the record of the instant proceeding why a Chartered Accountant

or a law graduate is preferred over an accountant with a longer period of experience or why when both are appeals, a person who with a lower

qualification stands higher in the seniority list should be denied the right of being considered for promotion first irrespective of qualifications. It is a

case, in my opinion, which falls closer to the case, where to grant an accelerated promotion something is found in somebody which otherwise is not

necessary for the service to which he belongs and he is picked up and promoted over the head of his seniors. In the instant case, I have no manner

of doubt that the bank has acted arbitrarily and violated Articles 14 and 16(1) of the Constitution of India. Many of the juniors of the Petitioner,

who were promoted over his head have marched further ahead and I am informed at the Bar that the Petitioner has already been promoted and he

is holding a rank superior to the rank which he was allegedly superseded. It is not, however, a fit case in my opinion in which because of such

supersession after an inordinate delay of about a decade, this Court should direct the Respondent to demote anyone who has already been

promoted or to do anything which shall reverse the progress of any of the employees in their service career, and which will work against the

interests of bank as well as the interests of the employees. A safe course in my opinion is the course of issuing direction to the Respondent to

consider the case of the Petitioner as if he stood above his next junior in Grade I of the bank officers and from there he has to proceed along with

his junior to the higher ranks in the services of the bank, and thus consider the case of the Petitioner for a fictional promotion, if any, when he was

first superseded and decide in the same way at each stage of promotion to place him above his next junior in the cadre to which he should have

been promoted had he not been superseded. This, however, will not mean that the Respondent cannot find the Petitioner ineligible for a certain

promotion or otherwise not suitable for the post depending upon and only on the principles which do not discriminate or are arbitrary and violate

Articles 14 and 16(1) of the Constitution of India.

Let a direction issue accordingly. There shall be no order as to costs.