Judgment · High Court · 2012

Heard Mr. PK Tiwari, learned counsel appearing for the petitioners. Also heard Mr. G Das, learned Standing Counsel, State Bank of India appearing for th e respondents.

#4. The case of the petitioners in a nutshell is that they were selected for appointment as Probationary Officers in the State Bank of India (’SBI’ for shor t) by the Central Recruitment and Promotion Department of the SBI and were allot ted NE circle. The offers of appointment made to the petitioners by the SBI vide letter dated 4.5.2009 (Annexure- P 1 in both the writ petitions) incorporating the terms and conditions of service which were governed by the SBI, Officers Ser vice Rules 1992 (as amended) (’1992 Rules’ for short) and the instructions/guide lines issued, other Rules and Regulations framed by the SBI from time to time. T he Probationary period of the petitioners was for a period of two years from the date of the appointment and their confirmation was subject to satisfactory repo rt from the Bank’s own sources as well as from the district authorities regardin g their character and antecedent and on satisfactory completion of the in servic e training during the probation coupled with satisfactory performance in the eva luation tests to be conducted by the SBI during the probation period. It was pro vided therein that failure in evaluation test will make them unfit for continuin g in Bank service and their appointments will be cancelled and service will be t erminated.

4.1. SBI Local Head Office, NE circle, Guwahati by Circular No.Cir DO/HR/30 o f 2010-11 dated 3.1.2011 (Annexure-P/6 in WP(C) No.3157/2011 and Annexure- P/4 i n WP(C) No.3461/2011) laid down the scheme and policy for confirmation of Probat ionary Officers of 2009-2010 batch and also outlined the methodology of screenin g process for confirmation. As per the circular, it was decided to conduct a wri tten examination on 27.2.2011 for confirmation of Probationary Officers of the 2 009-2010 batch whose services were due for confirmation as on 15.5.2011. The cir cular laid down the following scheme for the screening process for confirmation of the Probationary Officers as JMGS-I (Junior Management Grade Scale-1) for the ir direct placement in MMGS-II (Middle Management Grade Scale-II); (cid:28)(1) urs duration and carry maximum marks of 200 & &.. There shall be a written examination which would be of three and half ho Candidates scoring a minimum of 75% marks in the written test would qual (2) ify for the further process that will include group discussion and interview. Ca ndidates scoring minimum 75% marks in group discussion/interview also, shall be confirmed and placed in the grade of MMGS-II. Those scoring less than 75% marks but minimum 50% (45% for SC/ST/PWD) marks in the written test shall be confirmed in the grade of JMGS-I. Candidates scoring less than 50% (45% for SC/ST/PWD) ma rks will be given two options as under- a) OPTION-I Candidates will be required to appear in another confirmation test on or before completion of 24th month of his/her probation and in the event of not qu alifying in the re-test, his/her services will be terminated with immediate effe ct and he/she will be paid one month’s emoluments in lieu of one month’s notice in terms of Rule 16(3) of SBI Officer’s Service Rules read with the present poli cy of confirmation of Probationary Officers as applicable hitherto. b) OPTION-II Candidate’s probation will be extended by a further period of maximum on e year in terms of two periods of six months each (extending the total probation period to a maximum of 36 months) with the provision to appear in 02 more confi rmation test at 06 monthly intervals i.e. 02nd test in 27th month and 3rd test i n 33rd month of his/her probation respectively with the following conditions: In the event of- (i) Passing the proposed 02nd test after 27th month of probation candidate w ill be confirmed as JMGS-I on completion of 30th month of probation including ex tended period of probation of 6 months. The extended period of probation of six months will, however, not be counted for service seniority. (ii) Failing the 02nd test but passing the proposed 03rd test after 33rd mont h of his/her probation he/she will be confirmed as JMGS-I on completion of 36th month of probation including the extended period of probation of one year. The e xtended period of probation of one year will, however, not be counted for servic e seniority. (iii) Failing in the proposed 03rd test administered in the 33rd month of his/ her probation, 04 increments given to him/her on appointment as Probationary Off icer will be withdrawn and he/she will be absorbed as Officer, JMGS-I on complet ion of 36th month of probation period including the extended period of probation of one year. The extended period of probation of one year will not be counted f or service seniority & & & &.. (cid:29) The written examination of three and half hours duration carrying maximu 4.2. m marks of 200 was divided into two parts- descriptive and objective. The descri ptive paper was of 2-30 hours duration consisting of 140 marks, whereas objectiv e paper was one hour duration consisting of 120 objective questions of half mark s each thereby making a total of 60 marks. In objective paper there were five op tions for each question and a candidate was required to answer by way of blacken ing the oval against an option which the candidate felt as right answer.

4.3. Petitioners were called upon to appear in the written examination by cal l letter dated 12.2.2011. The written examination was scheduled on 27.2.2011 at Gauhati Commerce College, Guwahati. The petitioners appeared in the screening te st for confirmation on 27.2.2011 as per the schedule. The result of the screenin g test was declared by the Central Recruitment and Promotion Department of the B ank on 10.5.2011. However, the names of the petitioners were neither found in th e list of the selected candidates nor in the list of failed candidates or in the list of absentee candidates. When the petitioners’ names did not figure in the result of the screenin 4.4. g test for confirmation, they tried to enquire about their status from the Human Resources Department of the Bank. However, no authentic information could be re ceived by the petitioners and instead vide letter dated 13.5.2011 (Annexure-P/9 in WP(C) No.3157/2011 and Annexure-P/7 in WP(C) No.3461/2011), the Bank extended the probation period of the petitioners by 3 (three) months, i.e. up to 17.8.20 11 under Rule 16(2) of the 1992 Rules. Rule 16(2) of the 1992 Rules reads as fol lows: (cid:28)If, in the opinion of the competent authority, an officer has not satisfactoril y completed either or both the trainings referred to in sub-rule (1) or if the o fficer has not passed the test referred to therein or an officer’s service is no t satisfactory, the officer’s Probationary period may be extended by a further p eriod not exceeding one year. (cid:29)

4.5. Thereafter, the General Manager, SBI, Guwahati by letters dated 31.5.201 1 (Annexure-P/10 in WP(C) No.3157/2011 and Annexure-P/8 in WP(C) No.3461/2011) i nformed the petitioners that it has not been deemed fit to confirm them in the s ervice of the Bank and consequently, they are discharged from the service of the Bank under Rule 16(3) of the 1992 Rules with immediate effect. The Rule 16(3) o f the 1992 Rule being relevant is quoted hereunder:- (cid:28)16 (3) where during the period of probation, including the period of extension, if any, the competent authority is of the opinion that the officer is not fit f or confirmation, In the case of a direct appointee, his service may be terminated by one a) month’s notice or payment of one month’s emoluments in lieu thereof, and b) In the case of a promotee from the Bank’s service, he may be reverted to the grade or cadre from which he was promoted. (cid:29)

#5. Thus, being aggrieved with the orders of discharge, the petitioners have filed the instant writ petitions with the aforesaid prayer.

#6. Mr. Das, learned Standing Counsel, appearing for the State Bank of India has submitted that a detailed affidavit-in-opposition has been filed on behalf of the respondents contending inter alia that the screening test was conducted w ith the assistance of Institute of Banking Personnel Selection (’IBPS’ for short ). After conducting the examination, the respondent Bank sent the answer sheets for evaluation and analysis to the IBPS. It has been further stated that the IBP S is an autonomous body registered as a Public Trust under the Bombay Public Tru st Act, 1950 (for short ’1950 Act’). It is a Scientific and Industrial Research Organization under the department of Scientific and Industrial Research, Ministr y of Science and Technology, Government of India and is known for assessing the candidate with accuracy which is time tested and validated and that since last m ore than three decades, the IBPS has been following a scientific/theoretical met hod/consideration in detecting the use of unfair means/malpractices in objective tests by the candidates. It has further contended that the detection of use of unfair means/malpractice in the test by candidates is based on a very scientific and full proof system and on the basis of such scientific and theoretical metho d, the IBPS sent a report to the respondent Bank to the effect that the petition ers were found to be a case of (cid:28)use of unfair means suspected (cid:29). In the counter affidavit, it has further been stated that both the petit 6.1. ioners were seated in close proximity to each other and both have scores of matc hing answer of 90% or above. On the basis of the parameters laid down in the Inf ormation Handout (Annexure-P/11 to the WP(C) No.3157/2011) they were analysed an d both of them had total match of 56 out of 60 which included 6 Identical Wrong Answers (IWW) and only 4 Mis-Match. The IBPS after analyzing the answer scripts came to the conclusion of (cid:28)use of unfair means suspected (cid:29). It has also been stat ed that since in case of petitioners using of unfair means was suspected on the basis of the report of IBPS, the further scrutiny of their cases on the basis of performance in descriptive paper and interview was not mandatory.

#7. In the above backdrop, Mr. Tiwari, learned counsel appearing for the pet itioners, placing reliance on the Information Handout/Guidelines issued by the I BPS (Annexure-P/11 in WP(C) 3157/2011 and Annexure P/9 in WP(C)No.3461/2011) has submitted that in order to examine whether high scoring candidates have resorte d to unfair means, a criteria other than the criteria followed in the establishe d cases for unfair means is used. In the case of high scoring candidates, those candidates are picked up who have 90% or above questions (45 out of 50) with mat ching answers. Paragraph 4 of the Information Handout/Guidelines reads as thus; (cid:28)4. Based on the above considerations while establishing a case for use of u nfair means, we consider the following two important criteria: (A). 1. The pair of candidates have 12 or more questions with identical wrong answers in a test, (i.e. IWW 12 or more), 2. The number of questions with different responses is small, i.e. less than 5 i n the test (Mismatches 5 or less). The above criteria leaves out some candidates who might have resorted to unfair means but may have very high score on the test. For example, a pair scoring 39 o r above in a test of 50 items will have 11 or less questions wrongly answered. I n this case, IWW cannot exceed 11. In order to examine whether high scoring cand idates have resorted to unfair means, different criteria are used. Those pairs o f candidates are picked up who have 90% or above questions (45 out of 50) with m atching answers. This group is considered on the following two criteria. B. (1) IWW 5 or more (for 50 items test) (2) IWW 7 or more (for 75 items test) (3) Mismatch 5 or less (for 50 items test) (4) Mismatch 7 or less (for 50 items test). The candidates under criteria (A) are established cases for use of unfair means beyond all reasonable doubt. In the cases of candidates under criteria (B) use of unfair means is suspected. The Board/Organization may further scrutinize these cases on the basis of:- 1) 2) performance in the Descriptive Paper (if any), performance in interview. (cid:29)

7.1. It has further been contended that since in the case of the petitioners out of 60 questions there were 56 matches with 6 IWW, according to the criteria followed by the IBPS, they belonged to the criteria (B) wherein use of unfair me ans is suspected. Hence, in such a situation, it was incumbent upon the Bank aut hority to take into consideration the petitioners’ performance in the descriptiv e papers and interview to come to a definite conclusion as to whether the petiti oners who as per the sitting arrangement, were in close proximity to each other, really adopted unfair means in the objective paper and it would be neither fair nor just to discharge the petitioners from service merely on the basis of surmi ses, conjectures and probabilities.

7.2. Mr. Tiwari has further submitted that no adverse report was sent against the petitioners by any of the two invigilators present in the examination room about the conduct and behaviour of the petitioners during examination and that t he question papers of the objective test given to the petitioners were of differ ent series, which means that the order of questions and options were different i n respective papers given to the petitioners which made use of unfair means very difficult. In support of his submission, Mr. Tiwari has placed reliance on the two judgments passed in similar cases, one rendered by the Division Bench of Luc know Bench of Allahabad High Court passed in WP(C) No.1298(S/B)/2011 (Palak Modi -vs- State Bank of India & others alongwith WP(C) No.1512 (s/b)/2011 (Prabhat D ixit -vs- State Bank of India & others) and another Division Bench judgment rend ered by the Principal Seat of the Allahabad High Court in Writ-A No.37121/2011 ( Minshu Saxena -vs- Union of India and others.

#8. I have perused both the judgments. All the petitioners are similarly sit uated and belong to the same batch of SBI Probationary Officers. Both the Princi pal Seat of Allhabad High Court and Lucknow Bench of Allahabad High Court allowe d the respective writ petitions by holding the impugned action of discharge from service illegal with a direction to reinstate the petitioners therein with back wages. Relying upon the aforesaid judgments, Mr. Tiwari, learned counsel appear ing for the petitioners has submitted that the decisions rendered in the aforesa id two judgments are squarely applicable in the facts and circumstances of the p resent case in hand and accordingly, prayed for passing similar order in the ins tant writ petitions also.

#9. I have heard the learned counsel appearing for the parties. Also perused the pleadings set forth by the parties as well as the judgments rendered in Pal ak Modi (supra), Prabhat Dixit (supra) and Minshu Saxena (supra).

#10. The short question involved in the instant writ petition is whether the Bank while forming an opinion of use of unfair means in the screening test by th e petitioners on the basis of the report submitted by the IBPS was required to h ave evaluated the performance of the petitioners in descriptive papers as also i n interview, if any, before coming to the conclusion that they had used unfair m eans in the screening test and on that basis discharged them from their services ?

#11. Admittedly, the petitioners were working on probation in the Bank and as per policy of the Bank they were required to appear in the screening test for c onfirmation in JMGS-I (Junior Management Grade Scale-I) and MMGS-II (Middle Mana gement Grade Scale-II). In the instant case, the report of IBPS was sent on the basis of the guidelines and the procedure prescribed in the Information Handout (Annexure-P/11 in WP(C) No.3157/2011), relevant paragraph 4 of which has already been quoted hereinabove. Hence, it was incumbent upon the SBI while accepting t he report of the IBPS to evaluate the procedure prescribed in the aforementioned Guidelines/Information Handout in order to ascertain the use of unfair means by the petitioners. The contention is that no such exercise was conducted with reg ard to the petitioners, therefore, the action of the respondent Bank in terminat ing the services of the petitioners was arbitrary. The impugned letters dated 31 .5.2011 discharging the petitioners from service under Rule 16 (3) of the 1992 R ules thus are not sustainable in law and liable to be quashed.

#12. Even as per the case of the respondents at the most the petitioners were suspected of use of unfair means only. Hence, it would have been appropriate fo r the respondents to scrutinize the case of the petitioners further on the basis of performance in the descriptive paper and only thereafter, take a decision as to whether the petitioners were guilty of use of unfair means or not.

#13. From the stand of the respondent Bank as disclosed in the counter affida vit, it is evident that the performance of the petitioners in the descriptive pa pers which was held simultaneously with the objective test, was not evaluated. S ince even as per the report submitted by the IBPS, the use of unfair means of th e petitioners was only suspected and not confirmed, the decision of the responde nt Bank to discharge the petitioners after forming an opinion that they are susp ected of having use of unfair means in the objective type screening test for con firmation, would not be proper. The respondent Bank is required to scrutinize th e cases of the petitioners further on the basis of their performance in the desc riptive paper and interview. Mere suspicion cannot be made basis for discharging them from service.

#14. Moreover, if the respondent Bank which is a (cid:28)State (cid:29) within the meaning o f Article 12 of the Constitution, adopts a procedure to conclude that a person i s unsuitable for the job because he/she is suspected of using unfair means, in t hat event, the Bank is also under an obligation to follow the same procedure com pletely so as to exclude the possibilities of an erroneous conclusion based on s uspicion/presumption.

#15. On a perusal of the materials on record, it seems that the conclusion ar rived at by the respondent Bank that the petitioners are suspected of having use d of unfair means, is not based on any direct evidence but only on a methodolog y based on probability by comparison of answers to objective questions. From the ir own methodology adopted by the Bank, in a case of suspected use of unfair mea ns, which has been inferred from comparison of objective type answers, it was in cumbent upon the Bank to scrutinize the case of the petitioners on the basis of their performance in the descriptive paper. It is established from the uncontroverted statements made in paragraph 1 16. 1 of WP(C) No.3157/2011 and paragraph 10 of the WP(C) No.3461/2011 that the conf irmation test comprised of objective and descriptive types of papers. Therefore, it can be presumed that the respondent Bank had the opportunity to examine/scru tinize the petitioners’ answers to the descriptive questions. Whereas in the ins tant case, there is no material to suggest that any effort was made by the Bank to scrutinize the case of the petitioners on the basis of their performance in t he descriptive paper. Hence, the respondent Bank was guilty of deviating from it s own adopted procedure.

#17. Considering the matter in its entirety and in the facts and circumstance s of the case, this Court is of the view that decision of the respondent Bank to discharge the petitioners after forming the opinion that they had used unfair m eans in the objective type screening test for confirmation was not proper. The r espondent Bank was required to scrutinize the case of the petitioners further on the basis of their performance in the descriptive paper and interview (if any). It is a settled position of law that no person shall be adversely effected mere ly on the basis of suspicion. Until and unless the charge or guilt is proved, a person cannot be condemned or punished. However, the standard of such proof may vary, but the factum of arriving at a conclusive proof is a must.

#18. In that view of the matter, this Court is of the considered opinion that the orders impugned are not sustainable in the eye of law and the same are liab le to be quashed. Accordingly, the impugned orders of discharge dated 31.5.2011 (Annexure-P/10 in WP(C) No.3157/2011 and Annexure-P/8 in WP(C) No.3461/11) are h ereby quashed.

#19. In the result, the writ petitions succeed and are allowed. The responden t Bank is directed to reinstate the petitioners forthwith. The respondent Bank i s further directed to scrutinize their cases on the basis of, (1) performance in the descriptive papers of the written examination of the petitioners held on 27 .2.2011 for the screening process for Probationary Officers 2009-10 batch and (2 ) performance in interview, if any, and thereafter, take a decision with regard to use of alleged unfair means by the petitioners and consequently pass appropri ate orders in accordance with law. Till a fresh decision is taken in this regar d, the petitioners shall be allowed to continue in service with continuity in th e posts of Probationary Officers and be paid emoluments, as would have been paya ble to the petitioners had their services not been discharged. So far the back w ages are concerned, the petitioner in WP(C) No.3157/2011 has prayed for back wag es as she remained unemployed during the pendency of the writ petition. She woul d be entitled to 50% of the back wages which shall be paid to her within a perio d of 60 (sixty) days of the production of the certified copy of this order. Howe ver, no claim is being made on behalf of the petitioner in WP(C) No.3461/2011 re garding back wages as he got employment in Railway during the pendency of the wr it petition. 20. rder as to costs. Considering the facts and circumstances of the case, there shall be no o