CORAMTHE HONOURABLE MR v. Central Bank of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.04.2007CORAMTHE HONOURABLE MR.JUSTICE DHARMA RAO ELIPEANDTHE HONOURABLE MR.JUTICE S. PALANIVELUWRIT APPEAL No. 1482 of 2001Central Bank of India Staff Union,(Regn. No. 744/MDS)rep. by its General Secretary,62, Canal Bank Road,C.I.T. Nagar, Chennai – 35...AppellantVs.1.Central Bank of India,rep. by its Zonal Manager,48/40, Montieth Road,Egmore, Chennai – 600 008.2.Central Bank of India EmployeesUnion, rep. by its General Secretary,11, Second Line Beach, Chennai – 600 001.(R2 impleaded as per order of this Court dt.28.10.1999 in W.M.P. No. 7283/1993)..RespondentsPrayer:Writ Appeal filed under clause 15 of the Letters patentagainst the order dated 14.12.2000 in W.P. No. 15790/1992.Presented to this Court under Article 226 Constitution of Indiato issue a writ of Mandamus directing the respondent Bank topermit Mr. S. R. Iyengar, to take the qualifying test forPromotion to Junior Management Grade I, and promote him on thatbasis with effect from 16.12.1991 with Consequential Seniorityarrears of pay and all other benefits.For Appellant::Mr.N.G.R. Prasad for M/s. Row & ReddyFor Respondents::Mr.T.M. Hariharan https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(Judgment of the Court was delivered by Dharma Rao Elipe,J.)The writ appeal is directed against the order dated14.12.2000 of the learned Single Judge dismissing the writpetition filed for issue of a Writ of Mandamus directing therespondent Bank to permit S.R. Iyengar to take the qualifyingtest for promotion to Junior Management Grade I and promote himon that basis with effect from 16.12.1991 with consequentialseniority, arrears of pay and all other benefits.2.The case of the appellant is that one S.R. Iyengarjoined the respondent Central Bank of India on 13.1.1973 as aclerk. During December, 1990, the post of Assistant Head Cashierbecame vacant and S.R. Iyengar was issued with orders of postingfor the said post on 30.5.1991. The said Iyengar declined toaccept the post as he did not want to work in the cashDepartment. Due to this, the Bank debarred him for promotion forone year. As per the respondent Bank's promotion policy, if anemployee declines an acting assignment in another post, he wouldbe debarred from promotion for a period of one year.Subsequently, the promotion test for Junior Management Grade Iwas called for to fill up 12 vacancies. Two persons, who wereseniors to S.R. Iyengar were called for the test. According tothe appellant, S.R. Iyengar was not called, though he was atSerial No.14 in the seniority list dated 1.1.1991 pertaining toclerks. The appellant Union came to know that the said twopersons, who were senior to S.R. Iyengar, were not offered theacting assignment in May, 1991 before S.R. Iyengar was offered.The appellant Union made a representation on 23.9.1991 to theBank stating that the said two persons should have been offeredthe post of Assistant Head Cashier and only after they had turneddown the offer, the said post should have been offered toMr.Iyengar. In such a case, those two persons ought to have beendebarred from promotion for one year. Thereafter, the respondentBank agreed to withdraw the debarment order but the order waswithdrawn only on 24.12.1991 and served on Mr.Iyengar on30.12.1991 well after the said two seniors were promoted on16.12.1991. According to the appellant, in the year 1991, therewere 12 vacancies out of which, only 10 were filled up. Twovacancies remained unfilled since two persons who were promoted,refused to accept the same. After withdrawal of the debarmentorder, the Bank issued a letter on 30.12.1991 informing Iyengarthat he was eligible for promotion for Junior Management Grade Ias per the seniority list of clerks published as on 1.1.1991 andhe was asked to appear for the test on 24.4.1992. But, the https://hcservices.ecourts.gov.in/hcservices/ written test was postponed. Thereafter, the respondent Banknotified 6 vacancies for 1992 including 2 vacancies of 1991 andthe written test was scheduled to be held on 19.10.1992.According to the appellant, the said Iyengar should have beenconsidered first for the 2 vacancies of the year 1991, he being asenior, who was illegally denied promotion for the year 1991.However, he was not called for the test that was held on19.10.1992 and in the revised seniority list of clerks publishedin 1992, he was shown at Serial No.13 as his position got pusheddown due to the fact that certain seniors who were duly debarredfrom promotion earlier had become qualified and had regainedtheir seniority position among clerks. Aggrieved over the actionof the respondent Bank, the appellant filed W.P. No. 15790 of1992 and pursuant to the interim orders of this Court, S.R.Iyengar was allowed to take up the test which was held on28.12.1992. Though he was successful in the said test, yet, hecould not be promoted for the reason that there were seniorcandidates available in the seniority list to fill up the thenexisting vacancies and it was only in 19.12.1994, he waspromoted. In the said writ petition, the respondent Bank filed adetailed counter affidavit resisting the contention that S.R.Iyengar became eligible for promotion in the year 1991 itself andthat he ought to have been promoted with effect from 16.12.1991.On 14.12.2000, this Court, on consideration of the materials onrecord and the submissions made by the learned counsel on eitherside, dismissed the writ petition and challenging the same, theabove writ appeal has been filed.3. According to the learned counsel for theappellant, as per the seniority list furnished by the Bank, S.R.Iyengar was Serial No.14. Two candidates at Serial Nos. 1 and 5were not eligible for being considered for promotion. Therefore,for the 12 vacancies in the ratio of 1:1:25, 15 candidates wereeligible for being called and accordingly, S.R. Iyengar waseligible for being called for 1991 promotion process. Since, hewas eligible and he also got through the promotion test for theyear 1991 vacancies, he should have been promoted for the 1991vacancy and not for the 1994 vacancy. Learned counsel would alsosubmit that there were 2 vacancies for the year 1991 and theywere carried forward to 1992, the benefit of promotion shouldhave been given to S.R. Iyengar in respect of two carry forwardvacancies because the vacancies related to 1991 and he had passedthe exam in the year 1992 for 1991 vacancies. Admittedly,according to the learned counsel, in the seniority lisgt preparedas on 1.1.1991, three persons occupying Serial Nos. 1, 2 and 3did not appear for the promotion test. The person at Serial No.7was under suspension. Two others did not accept promotion.Consequently, employees occupying Serial Nos. 4 to 6 and 8 to 13were promoted, out of whom, those at Serial Nos. 6 and 10 did not https://hcservices.ecourts.gov.in/hcservices/ accept the promotion. Hence, the learned Judge ought to haveheld that S.R. Iyengar was within the zone of consideration.Moreover, when he came out successful in the test, the Bankshould have promoted him with effect from 1991 and by not doingso, great injustice has been caused to S.R. Iyengar.4.On the other hand, the learned counsel for therespondent Bank, would contend that under the Promotion PolicyAgreement, the procedure to be followed while calling thecandidates is as follows:"(i)25% more than the vacancies to be called.(ii)If the number includes candidates who had earlierappeared/called for the test, additional freshcandidates should be called; and(iii)However, number of fresh candidates shouldnot exceed the number of actual vacancies."The learned counsel submitted that for the year 1991, 9vacancies were identified in the general category for JuniorManagement Grade I. One candidate, who had qualified forpromotion in the earlier year, but was not promoted in 1990 forwant of vacancies, was granted promotion in 1991. As such, thevacancies to be filled up for the year 1991 was arrived at eightand in the seniority list, S.R. Iyengar occupied the 15th place.As per the promotion policy agreement, to fill up the net vacancyof eight, 10 candidates had to be called for the test. As onecandidate was already granted promotion, candidates upto SerialNo.13 had to be called for the promotion test excluding 2candidates, who were not eligible. Though promotion orders wereissued for 9 candidates on 16.12.1991, two of the promoteesdeclined to accept promotion and the vacancies caused could notbe filled up before the end of the calendar year 1991. Accordingto the learned counsel, the withdrawal of debarment imposed onS.R. Iyengar, in no way affected his promotion, as he ranked onlyat No.15 in the seniority list and only candidates upto SerialNo.13 in the seniority list were eligible to be called for thepromotion test. Further, it has throughout been the establishedpractice right from the evolution of the promotion policyagreement to carry over unfilled vacancies to the subsequentyear. Hence, in the circumstances, the test scheduled in April,1992 basing on the seniority list of 1991 could not be held as itwas realised that the same is against the policy and conductingsuch a second process of promotion basing on the seniority listof a particular year would throw up numerous such demands, pastand future, contrary to established practice. It is thesubmission of the learned counsel that in 1992, in the commonseniority list of clerks, in the general category, S.R. Iyengarwas placed at Serial No.12 and number of vacancies to be filledup, including two vacancies of the previous year was four. As https://hcservices.ecourts.gov.in/hcservices/ per the promotion policy agreement, clerks till Serial No.9 alonewere eligible to be called for the promotion test and out of sixcandidates, who got through in the test, only four candidateswould be promoted and the remaining two were empanelled as theycould not be promoted for want of vacancies. Even in the year1993, four vacancies were identified in the general category andcandidates upto Serial No.6-A alone were eligible and the saidS.R. Iyengar was in the 9th place as per the seniority list.Ultimately, only in 1994, S.R. Iyengar, who occupied the 6thplace, became eligible to be promoted and he was accordinglypromoted with effect from 19.12.1994. According to the learnedcounsel, since it is not the practice to undertake a secondpromotion process in any year and unfilled vacancies, if any, ofa particular year are carried over to the immediately succeedingyear and though, S.R. Iyengar passed the test pursuant to theorders of this Court in 1992, he was empanelled and he could bepromoted only in the year 1994. The promotion process has beendone in accordance with the established procedure and no malafide, whatsoever, can be attributed to the respondent Bank.5.Heard the learned counsel on either side andperused the materials on record. In paragraph 6 of the counteraffidavit filed by the respondent Bank, it is stated as follows:"However, in the year 1992, when the Bank decidedto conduct a promotion test basing on the senioritylist of 1991 again, Mr.S.R. Iyengar was called for thetest to be held on 24.4.1992 as he was eligible as atthe cut-off point of 31.12.1991. However, the writtentest for promotion could not be held on 24.4.1992 onrealisation by the Bank that conducting a second testbasing on 1991 seniority again in 1992 would throw updemands for such second promotion process in futuretoo. It is evident from the above extract that only on realisingthe mistake committed by them, due to which S.R. Iyengar wasdeprived of his promotion, the Bank had taken the decision toconduct a second test and according to the above extract, thesaid employee became eligible to be considered for promotion inthe year 1991 itself and therefore, the contention of the learnedcounsel for the respondent Bank that in a calendar year, a secondpromotion test is not conducted is not correct. Further, theaction of the Bank in imposing debarment for not accepting thepost of Assistant Head Cashier, without offering the said post totwo other persons, who were senior to him and lifting the saiddebarment after effecting promotions on 16.12.1991, clearly showsthe mala fide intention of the respondent Bank. For the abovereasons, we are of the opinion that S.R. Iyengar has beendeprived of his legitimate promotion and accordingly, we set https://hcservices.ecourts.gov.in/hcservices/ aside the order of the learned Single Judge. The writ appeal isallowed. We are informed that the said S.R. Iyengar has retiredfrom service. The Bank is directed to give notional promotionto him with effect from 16.12.1991 and pay the monetary benefitsas he would be entitled to on regular promotion within a periof 4weeks from the date of receipt of a copy of this order. However,it is made clear, this judgment shall not be taken as a precedentin future cases. No costs.nv Sd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Zonal Manager,Central Bank of India,48/40, Montieth Road,Egmore, Chennai – 600 008.+ 1 cc to M/s. T. M. Hariharan, Advocate SR No. 21918+ 1 cc to M/s. Row & Reddy, Advocate SR No. 21642W.A. No. 1482 of 2001AKR(CO)SR/14.5.2007