Sri Chandra Bhushan Pd. Shrivastava, Clerk-cum-Cashier, Bhojpur Rohtas v. The Union of India, Ministry of Finance, Banking Division, New Delhi

6. Sri Chandra Bhushan Pd. Shrivastava, Clerk-cum-Cashier, Bhojpur Rohtas Gramin Bank, P.O.-Char Pokhri District-Bhojpur.

7. Sri Manna Ji Srivastava, Clerk-cum-Cashier, Bhojpur Rohtas Gramin Bank, H.O.-Ara, District-Bhojpur. -Petitioners. VERSUS

1. The Union of India, Ministry of Finance, Banking Division, New Delhi, through its Secretary.

2. The Manager, Priority Sector and Lead Bank, Punjab National Bank, H.O.- New Delhi.

3. The Chairman, Bhojpur Rohtas Gramin Bank, H.O. South Ramna Road, Ara, District-Bhojpur.

4. The Board of Director, Bhojpur Rohtas Gramin Bank, Ara, District- Bhojpur. -Respondents. WITH CWJC No.8266 of 2002

1. Subhash Chandra Thakur, S/o- Sri Awadhesh Kumar Thakur, Clerk-cum- Cashier, Bhojpur Rohtas Gramin Bank, H.O. South Ramna Road, Ara, District-Bhojpur.

2. Arun Kumar Singh, S/o-Sri Bishwanath Singh, Clerk-cum-Cashier, Bhojpur Rohtas Gramin Bank, B.O.-Bibiganj, Post-Banpali, Via-Chandwa, District- Bhojpur.

3. Abhay Prakash, S/o-Sri Gopal Nandan Sahay, Clerk-cum-Cashier, Bhojpur Rohtas Gramin Bank, B.O.-Doghra, Post-Bihia Chaurasta, District-Bhojpur.

4. Rajkant Mishra, S/o-Late Lakhi Narayan Mishra, Clerk-cum-Cashier, Bhojpur Rohtas Gramin Bank, B.O.-Hetampur, District-Bhojpur.

5. Ajay Kumar Sinha, S/o- Sri Mahendra Pd. Sinha, Clerk-cum-Cashier, Bhojpur Rohtas Gramin Bank, B.O.-Kayamnagar, District-Bhojpur.

6. Narendra Kumar, S/o-Sri Kamal Kishore Singh, Clerk-cum-Cashier, B.O.- Jitora, District-Bhojpur. -Petitioners. VERSUS - 2 -

Bhojpur Rohtas Gramin Bank, H.O. South Ramna Road, Ara, District- Bhojpur through its Chairman.

Board of Director, Bhojpur Rohtas Gramin Bank, Head Office-South Ramna Road, Ara, District-Bhojpur.

The Assistant General Manager, Priority Sector & Lead Bank Division, Punjab National Bank, H.O.-5 Sansad Marg, New Delhi. -Respondents. -------------- Counsel for the Petitioners : Mr. Ajay Kumar Sinha. Counsel for the Bank : Mr. Rakesh Narayan Singh. -------------- 10

23.06.2009 The petitioners are employees of Bhojpur Rohtas Gramin Bank. The employees of the said bank are covered under the Regional Rural Banks Act and their service conditions are covered by the Regional Rural Banks (Appointment and Promotion of Officers and other employees) Rules 1988. These Rules were published in the official gazette on 28.09.1988. The said Rules inter alia provide the cadre, qualification and recruitment of Officers of the bank. In second schedule thereof, it is provided that the Officers cadre shall be filled up 50% by direct recruit and 50% by promotion. A complete guideline is given in the second schedule as to how this bifurcation has to be made. Petitioners’ grievance is simple. They submit that the rules having come into force the Officers cadre had to be accordingly bifurcated for the purposes of promotion into that cadre. All posts and future vacancies as from 1988 had to be filled up accordingly, but that was not done.

Petitioners were entitled to be promoted and there existed vacancies, if proper calculations were made, as per the rule aforesaid. They being entitled to promotion, denial of promotion to them was wrong and violative of Articles 14 and 16 of the Constitution. It is then - 3 - submitted that in 1998 the rules were amended, the rules now provided for a written examination of appointment in the cadre of Officers. This was followed by a new Man Power Staffing policy. On behalf of respondent-bank, it is submitted that though vacancies existed, in view of the amendment in the rules in 1998 and new Man Power Staffing policy some persons who were remaining to be promoted could not be promoted any more. To this learned counsel for the petitioner, Mr. Ajay Kumar Sinha submits that consideration for promotion was entitlement, which crystallized much before the rules were amended in 1998 or for that matter the new Man Power Staffing policy come but for no valid reason the bank delayed the consideration of petitioners promotion.

The available vacant post at that time was not properly quantified. Thus, they were wrongly denied promotion and now having wrongly denied promotion, the bank is trying to take advantage of its own default for granting promotion and using the new Man Power Staffing policy to frustrate the right of petitioners. Having heard the parties, in my view, in principle the contention of the petitioners is correct. If under the 1988 rules upon proper calculation petitioners were entitled to promotion, there being vacancy in the promotional avenue, they cannot be denied promotion, merely because the bank delayed in considering and finalizing the same. But, the question is, before any relief can be substantially granted to the petitioners, the number of vacancies available for promotional post has to be correctly calculated. Mr. Sinha, learned counsel for the petitioners draws attention of this Court to the vacillating stand of the bank in this - 4 - regard.

He refers to the written statement of the bank, which was filed at the time of conciliation proceedings under the Industrial Disputes Act to show that bank admitted vacancies and had agreed to consider petitioners for promotion, but once the conciliation fails the bank resiled from the stand on the ground that under the new Man Power Staffing policy they have no vacancy. In my view, the law is otherwise. If on a particular day a vacancy is available and petitioners are entitled to be considered for promotion to the said vacancy his right cannot be defeated by the bank by delay in considering the same and then pleading subsequent change in policy. The right to be considered had crystallized on the day the vacancy was available. If this is permissible then it would be open to the bank to keep delaying promotion, thus, effectively denying promotion and then change the rules subsequently that is not permissible.

In that view of the matter, I have no option but to direct the respondent-bank to reconsider the entire matter. They must re-quantify the vacancies available from time to time to be filled up in terms of promotion as envisaged in 1988 rules and in particular rule 6 of second schedule thereof, up to the date when 1998 rules came into being. All unfilled accrued vacancies which was to be filled up by promotional post has to be carried forward and made available for filling up by such promotion, subject to availability of vacant post at that time that is up to the time 1998 rules came into being. Subsequent Man Power Staffing policy changes will not come in way. If the stand of the bank permitted it would be like saying that merely because the bank delayed to act, the - 5 - right of petitioners is lost. That is not law. For default of the bank petitioners cannot loose their entitlement. This Court is persuaded to make these observations because of the fact that petitioners have worked in the bank for over 25 years without a single promotion.