Pandyan Grama Bank Offiers' Union v. Pandyan Grama Bank

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 26.10.2009CoramThe Honourable Mr.Justice K.K.SASIDHARANW.PNo.8010 of 2000 Pandyan Grama Bank Offiers' Unionrep.by its General SecretaryNo.6, Pichai Street, Virudhunagar-626 001....Petitioner-Vs.-1. Pandyan Grama Bank rep.by its Chairman Administrative Office Kandapuram Street Virudhunagar-626 001.2. M.Balan3. S.Selvamuthupandian4. K.Vijayaraghavan...RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of Certiorarified Mandamus calling for recordsrelating to order No.PAD/1/2000-2001 dated 8.4.2000 passed by thefirst respondent, quash the same insofar as the promotions torespondents 2 to 4 are concerned and direct the first respondent topromote S.Karunakaran, M.Seenipandi and R.Prabhakar to the post ofOfficer Scale II with effect from 8.2.2000.For Petitioner :Mr.P.V.S.GiridharFor respondents:Mr.N.G.R.Prasad for RR 2 to 4.ORDERThis writ petition has been filed to quash the proceedings ofthe first respondent in Reference No.PAD/1/2000-2001 dated 8.4.2000granting promotion to the respondents 2 to 4 and to direct the firstrespondent to promote S.Karunakaran, M.Seenipandi and R.Prabhakar tothe post of Officer Scale II with effect from 8.2.2000.BACKGROUND FACTS:-THE PETITION:-2. The petitioner is a registered Union formed with a view toprotect the rights and interest of officers of the first respondentBank.3. The first respondent is a bank and there are three grades ofofficers namely, Officers Scale I, Scale II and Scale III. Promotionfrom Officers Scale I to Officers Scale II is to be made on thebasis of seniority-cum-merit under the Service Rules. Officers in https://hcservices.ecourts.gov.in/hcservices/ Scale I, who have rendered eight years of service on regular basisare eligible for promotion. The selection is to be made on the basisof written test, interview and assessment of performance appraisalreport for the preceding five years. 4. The relevant rule as contained in Rule 9 provides thatScheduled Caste/Scheduled Tribe officers, who are senior enough inthe zone of consideration for promotion and within the number ofvacancies for which select list has been drawn up, would be includedin the list, provided they are not considered unfit for promotion.5. During January, 2000, eligible officers scale I were asked toattend written test which was held on 23.1.2000. Even though therewere only 31 vacancies, more than 125 candidates appeared in thewritten examination. Subsequently on 31.3.2000, it was announcedthat 54 candidates had passed the written test and they were allasked to attend the interview. Eight scheduled caste candidatesincluding S.Karunakaran, M.Seenipandi and R.Prabhakar were in thelist.6. The eight Scheduled Caste candidates figured within Sl.No.31in terms of inter se seniority of those who passed the written test.However when the select list was announced as per proceedings dated8.4.2000, it was found that the three scheduled caste candidatesnamely, S.Karunakaran, M.Seenipandi and R.Prabhakar were notselected. The non- selection was unreasonable and it was alsoviolative of the service rules.7. Thiru S.Karunakaran entered the service as Officer Scale Ion 4.11.1981. Similarly Thiru M.Seenipandi and Thiru R.Prabhakarentered the service on 9.12.1981 and 19.1.1987 respectively. Allthese three officers have good service records and they have notsuffered any penalty or adverse remarks during the period relevantfor consideration for promotion. Respondents 2 to 4 are all juniorto them. 8. The rules envisage that promotions have to be made on thebasis of seniority-cum-merit. The non-selected candidates wereseniors enough in the zone of consideration for promotion and as suchtheir names have to be included provided they are not consideredunfit for promotion. However there was nothing to brand them asunfit for promotion and as such non-selection of S.Karunakaran,M.Seenipandi and R.Prabhakar for the post of Officers Scale II wasper se illegal and the selection of respondents 2 to 4, who arejuniors to the other candidates have to be set aside.THE DEFENCE:-9. The first respondent has filed counter affidavit in answerto the contentions raised in the affidavit filed in support of thewrit petition. According to the first respondent, vacancies in ScaleII has to be filled up by following the rule regarding seniority-cum-merit. The merit was decided on the basis of written test, interviewand performance appraisal report. Those who obtained minimum 40% inthe written test were called for interview and those candidates whowere found fit in the interview by taking into consideration theperformance appraisal report were promoted. https://hcservices.ecourts.gov.in/hcservices/

10. There were 31 vacancies and 164 candidates appeared for thewritten test. However only 54 candidates qualified for interview.Those candidates were interviewed and 31 were promoted based on theperformance appraisal report as well as their performance in theinterview. Once they were found fit in the interview, they werepromoted on the basis of seniority. Out of the eleven scheduledcaste candidates who got through the written test, five got throughthe interview and they were all promoted. The candidates by nameS.Karunakaran, M.Sennipandi and R.Prabhakar were not selected astheir confidential reports were not good and they were also declaredunfit in the interview. The first respondent has also detailed thedepartmental proceedings initiated against those three candidates.11. Thiru S.Karunakaran was cautioned by a letter dated9.6.1997 for late attendance in spite of repeated warnings on hishabitual late coming. As per proceedings dated 17.2.1997 he was againwarned for unauthorised stay at the Bank premises during night hoursindulging in undesirable activities. A charge sheet was also issuedto Thiru S.Karunakaran for certain serious acts of commission andomission and again as per proceedings dated 8.3.1996 he wascautioned. Subsequently as per proceedings dated 25.3.1998 ThiruS.Karunakaran was once again cautioned for his discrepancies/lapsesin performing his duties as Manager. His performance appraisalreport shows that he was a below average worker.12. The performance of Thiru M.Seenipandi was also belowaverage. He was suspended from service on 18.12.1989 for committingcertain acts of commission and omission during his term as Managerof Tenkalam Branch. Subsequently he was reinstated on 20.2.1995. Hewas cautioned as per proceedings dated 19.3.1998 for putting the bankto grave risk of losing Rs.86,672/-. He was also cautioned as perproceedings dated 21.7.1998 for making dual claim of travellingallowance. His performance appraisal report shows that he is a belowaverage worker.13. Thiru R.Prabhakaran was charge sheeted for serious lapsesfor fraudulently availing 14 agricultural jewel loans by forging thesignature in the loan documents and opening Savings Bank Account inthe name of non-existing persons and for bogus transactions in theaccount. By taking a lenient view he was awarded punishment ofreprimand as per proceedings dated 1.11.1996. Similarly as perproceedings dated 7.1.1999, he was cautioned for late attendance andhis performance appraisal report shows unsatisfactory performance.14. In short, the first respondent justified the non grant ofpromotion to S.Karunakaran, M.Sennipandi and R.Prabhakar on theground that they obtained only less marks in the interview and thattheir performance appraisal report shows that they were below average.DISCUSSION:-15. The writ petition has been preferred by the Officers Unionof the bank. Therefore before taking up the rival contentions onmerits, I am of the considered view that the very maintainability ofthe writ petition at the instance of the Union has to be taken. Itis only in case the writ petition is found maintainable at the https://hcservices.ecourts.gov.in/hcservices/ instance of the petitioner union, the further question as to whetherthe denial of promotion to the three candidates were illegal has tobe considered.16. The challenge in this writ petition was not with respect toany of the service regulations framed by the first respondent. Theimpugned order pertains to a proceeding for promotion of 31candidates including respondents 2 to 4. As per the averments inthe writ petition three of the officers namely, S.Karunakaran,M.Seenipandi and R.Prabhakar were not promoted even though they werequalified to be promoted. However very strangely those threeofficers are not before this court. There is nothing indicated inthe affidavit as to whether the Union was authorised by the threeaggrieved officers to file this writ petition. 17. In the affidavit filed in support of the writ petition, thepetitioner has stated that substantial number of officers of the bankare members of the petitioner union. It was not even stated as towhether those three officers by name S.Karunakaran, M.Seenipandi andR.Prabhakar are also members of the union. When the individualofficers have no grievance in respect of the impugned order, thequestion is as to how the Union was aggrieved. There is nothing onrecord to show that the individual officers have taken up the issueof denial of promotion with the first respondent at any point oftime. 18. The right to consider for promotion is the individual rightof the employee, over which the association has no role to play. Theorder under challenge has nothing to do with the petitioner union.The union was exposing the cause of three of the employees. Howeverwhether to challenge the impugned order nor not is a matter to bedecided only by the individual employees. By no stretch ofimagination it could be said that the petitioner was aggrieved onaccount of denial of promotion to three of the officers of the bank.19. The issue regarding locus standi of the association tochallenge the order regarding the service conditions of individualemployees came up for consideration before a Division Bench of thiscourt in TAMILAGA ASIRIYAR KOOTANI v. THE GOVERNMENT OF TAMIL NADUAND 19 OTHERS (2005 WRIT LAW REPORTER 389) and after considering thejudgment of the Supreme Court as well as other High Courts, theDivision Bench presided over by His Lordship Mr.Justice MarkandeyKatju (as His Lordship then was) held that Government Orderpertaining to teachers of an educational institution, can bechallenged only at the instance of the Head Master or Teacher oreducational institution, but the association has no locus standi inthe matter. 20. Therefore denial of promotion to the individual officers isa matter to be exposed by the respective officers. The petitionerUnion has no locus standi to expose the cause. The correctness ofthe impugned order can be examined only at the instance of theaggrieved employee and not at the initiative of association.21. It is not clear as to whether those three officers werereally aggrieved and there is not even a whisper in the affidavit https://hcservices.ecourts.gov.in/hcservices/ filed in support of the writ petition to the effect that they haverequested the union to take up the matter. It is not as if theindividual officers were precluded or disabled from filing the writpetition before this court challenging their denial of promotion.Those officers are all working in the first respondent bank and itis always possible for them to challenge the order denying promotion.Therefore I am of the view that the writ petition at the instance ofthe petitioner Union is clearly not maintainable and as such it isnot necessary to consider the merits of the matter in such a writpetition.22. The next question is as to whether this court is justifiedin dismissing the writ petition as not maintainable after admittingthe same as early as in the year 2000.23. In STATE OF U.P. AND ORS. vs. U.P.RAJYA KHANIJ VIKAS NIGAMS.S. (2008(9) SCALE 1), the issue before the Supreme Court was as towhether a writ petition can be dismissed at the time of finalhearing even though it was admitted originally. The Supreme Courtobserved that it is neither the legal position nor such a propositionhas been laid down, that once a petition is admitted, it cannot bedismissed on the ground of alternative remedy. The followingparagraph would make the legal position clear."38. Even otherwise, the learned Judgewas not right in law. True it is thatissuance of Rule nisi or passing of interimorders is a relevant consideration for notdismissing a petition if it appears to theHigh Court that the matter could be decidedby a writ-Court. It has been so held even bythis Court in several cases that even ifalternative remedy is available, it cannotbe held that a writ petition is notmaintainable. In our judgment, however, itcannot be laid down as a proposition of lawthat once a petition is admitted, it couldnever be dismissed on the ground ofalternative remedy. If such bald contentionis upheld, even this Court cannot orderdismissal of a writ petition which ought notto have been entertained by the High Courtunder Article 226 of the Constitution inview of availability of alternative andequally efficacious remedy to the aggrievedparty, once the High Court has entertained awrit-petition albeit wrongly and granted therelief to the petitioner."24. The observation of the Supreme Court in U.P.RAJYA KHANIJVIKAS NIGAM's case with regard to dismissal of the writ petition onthe ground of alternative remedy at the time of final hearing inspite of admission of the writ petition, is clearly applicable to thecase on hand. Even though the writ petition was admitted, it cannotbe said that this court is bound to consider the merits of the matterwhen the very locus standi of the petitioner Union is under https://hcservices.ecourts.gov.in/hcservices/ challenge. In fact the writ petition was admitted before filingcounter by the first respondent. In the counter they have taken aspecific contention that the writ petition in a matter like this isnot maintainable at the instance of the Union. Therefore I am of theview that the admission of the writ petition earlier is not a bar forrejecting the same on the ground of maintainability.25. In the result, the writ petition is dismissed. No costs.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarTr/ToThe ChairmanPandyan Grama BankAdministrative OfficeKandapuram StreetVirudhunagar-626 001.+One CC to Mr.N.G.R.Prasad, Advocate, Sr.56888+One CC to M/s.PVS Giridhar & Sai Associates Sr.56641W.P.No.8010/2000MBS (CO)SRA 02/11/2009