ORDER
Tirath Singh Thakur, J.
1. “You are upon consideration found unsuitable for Promotion” – is what the Respondent – Bank has conveyed to the Petitioner by the intimation sent by it and brought under challenge in this Writ Petition. The Petitioner has claimed a certiorari quashing the intimation, as if it were an order which proprio vigore turned down his claim albeit unfairly from his stand point. Hypertechnicalities as to the form of the petition for a change took the back seat while the learned Counsel on both the sides addressed their arguments on the substance of the matter namely – was the consideration accorded to the petitioner’s case in any way defective or vitiated by any flaw – legal or procedural?
2. The petitioners started his career as a Clerk in the Respondent-Bank but soon thereafter entered the Officers Cadre as Sub-Accountant in the year 1967. He was promoted as Officer Grade -I with effect from 1.4.1973, which post was later re-designated as MMG Scale – I with effect from 1.10.1979.
3. Promotions to the next higher Grade namely MMG Scale-II saw the petitioner lose the race to a large number of his juniors who were promoted while the petitioner was not. Aggrieved, the petitioner filed Writ Petition No. 17655/1983 in which he claimed promotion to the post of MMG Scale-II with effect from 1.8.1980, that is the date on which the juniors had been promoted. This petitioner succeeded and was allowed by a Single Judge of this Court by his order dated 16th January 1991 holding the petitioner entitled to promotion to MMG Scale -II retrospectively from 1.8.1980. This Court further directed that since some of those who were Junior to the petitioner were already promoted as MMG Scale-IV as on the date of the judgment, the petitioner shall be entitled to be placed above the said juniors in the said MMG Scale-IV.
4. Aggrieved, the Respondent-Bank preferred Writ Appeal No. 1419/1991 in which the first part of the order passed by the learned Single Judge directing the promotion of the petitioner to MMG Scale-II was confirmed but the later direction regarding the petitioners placement above his juniors in MMG Scale-IV, was set aside leaving it open for the Respondent to consider the petitioner’s case for promotion, to the next higher post having regard to the subsequent events but declaring that the petitioner was entitled to the consequential benefits arising out of his promotion to MMG Scale-II.
5. The petitioner’s promotion to the next higher grades of MMG Scale-Ill and IV, did not come through for want of consideration by the Respondent – Bank, obtensibly because the petitioner was not considered eligible for such consideration. Aggrieved by their inaction in the matter the petitioner filed Contempt Petition No. 513/1992. During the pendency of the said proceedings the petitioner became eligible for consideration for promotion to MMG Scale-III, with effect from 1.8.1986 and was accordingly called for interview by the Respondent-Bank by its letter dated 19th August, 1992, He was interviewed by the concerned Committee comprising three senior Officers of the Respondent-Bank on 20th of August 1992, but found unsuitable for promotion to MMG Scale – III, which fact was conveyed to the petitioner by the impugned intimation sent by the Respondent -Bank as pointed out earlier.
6. In the meantime the contempt case filed by the petitioner came up for consideration and was disposed of by an order dated 10th November, 1992, passed by a Division Bench of this Court directing the Respondent Bank to promote the petitioner as MMG Scale – III, within a period of four weeks from the date of the said order. The direction of the Division Bench, obviously proceeded on the basis that the promotion to the next higher post of MMG Scale III ought to have followed as a necessary consequence of the petitioner’s promotion to MMG Scale II and the denial thereof was legally bad. Feeling aggrieved of the said direction, the Respondent-Bank preferred a Special Leave Petition before the Supreme Court which was granted and the matter heard and finally disposed of by their Lordships by order dated 6th April, 1993. The Supreme Court held that the exercise undertaken by the High Court in the contempt proceedings was “outside the subject matter of the main litigation” and that the question as to whether the petitioner was entitled to promotion as MMG S. III and thereafter as MMG S. IV was a substantive and independent relief that could be agitated and granted to him only in separate proceedings. It is in the light of the said observations that the petitioners has filed the present Writ Petition questioning the validity of the denial of promotion to him.
7. Heard learned Counsel for the parties.
8. Mr. C.B. Srinivasan, learned Counsel appearing for the petitioner raised a two-fold contention against the impugned order. Firstly, he contended that the petitioner’s entitlement for promotion to MMG Scale III stood concluded by the order passed by the Division Bench in W.A.No. 1419/1991 and therefore the question of the Respondent-Bank holding the petitioner unsuitable or disentitled to promotion did not arise. Secondly, he argued that the refusal on the part of the Respondent Bank to promote the petitioner to the next higher grade was vitiated by legal infirmities in the process of consideration of his case.
9. Appearing on behalf of the Respondents Mr. Prabhakar on the other hand argued that the order of the Division Bench did not deal with the question of the petitioner’s promotion to the next higher grade i.e. MMG Scale III nor did the Court express any opinion on the said aspect of the matter. Relying upon the order of the Supreme Court he contended that the question of promotion of the petitioner to MMG S. III and IV had been left open to be decided in independent legal proceedings. As regards the alternative submission made by Mr. Srinivasan, it was argued that the consideration accorded to the petitioner’s case for promotion to MMG S III was based on the procedure prescribed for the purpose and prevalent during the relevant period and that there was nothing illegal, improper or irrational about the method of evaluation of the petitioner’s suitability adopted by the Respondent-Bank so as to warrant any interference with the end result thereof.
10. I have given my anxious consideration to the submissions made at the bar and propose to deal with the same ad seriatum
11. The answer to the first limb of the petitioner’s case is provided by the order passed by the Division Bench in the Writ Appeal filed by the Respondent-Bank. I have carefully gone through the said order but find nothing in the same to support the petitioner’s contention that his entitlement for promotion to the next higher grade stood concluded by the said judgment. Mr. Srinivasan referred in particular to some passage in the said judgment in an attempt to show as if the Division Bench had considered the question of the petitioner’s right to get promotion to the next higher post also but even these passages do not in reality lend any assistance to the petitioner’s argument. Ail that the Division Bench had to say was that the Respondent-Bank may consider the case of the petitioner for promotion to the next higher grades i.e., MMG S – III and IV as such a consideration would flow as a necessary consequence of the promotion of the petitioner to MMG S-II. In other words, the petitioner was held entitled only to a right to consideration for the next higher promotion without the Court expressing any opinion as to whether he would actually be entitled to any such promotion upon consideration of his case. That apart the question as to whether the promotion of the petitioner to MMG-III was outside the subject matter of the Writ Petition filed by the petitioner is no longer res-integra in view of the last word spoken by the Supreme Court on the said aspect. A plain reading of the order passed by their Lordships makes it manifest that promotions to MMG S. III and IV were held to be outside the scope of the Writ Petition thereby making it impermissible for the High Court to issue directions in regard thereto in exercise of its contempt jurisdiction. The order passed by the Supreme Court specifically leaves the petitioner’s entitlement to promotion to the higher Grades -III and IV open to be examined and determined in independent proceedings. The relevant portion of the order of the Supreme Court may at this stage be extracted:-
“3. “The real controversy centres around the propriety of the further orders made by the High Court in proceedings of contempt of Court in holding that consequential relief to the respondent also implied that the further promotion to MMG S -III should also be worked out on the deemed position that respondent was in MMG S- II with effect from 1st August 1980. There is some controversy as to the procedure applicable to such further promotion to MMG S – III and thereafter MMG S-IV. The High Court in the contempt proceedings has directed that Respondent be promoted to MMG S-III. This part of the exercise of the High court appears to us to be really outside the subject matter of the main litigation and is of an substantive and independent nature. This is a relief not permissible in contempt proceedings.
Accordingly, the order under appeal is modified. The promotion of the respondent is continued to MMG Scale -II. Whatever consequential benefits that respondent considers himself entitled to as flowing from his promotion to MMG S-II with effect from 1st August, 1980, may be worked out by him in independent proceedings. If such proceedings are initiated, it will be appropriate for the High Court to dispose of the same most expeditiously having regard to the duration this litigation has taken.”
That being so, even assuming that the Division Bench had expressed any opinion on the above aspect, the same would pale into insignificance and can hardly be called in aid by the petitioner. I have therefore no hesitation in rejecting the first-submission made by Mr. Srinivasan.
12. That brings me to the second limb of the petitioner’s case. Mr. Srinivasan, had a three-fold submission to make in regard to the validity of the consideration accorded to the petitioner’s case for promotion to MMG Scale-III. The first and the foremost out of which was that the appraisal of the petitioner’s performance and the evaluation of his suitability was artificial in nature and unrelated to his performance during the period under consideration. Secondly it was urged that since a large number of petitioner’s juniors had been promoted the same made the denial of a similar benefit to him unfair and arbitrary. Thirdly it was contended that since the petitioner’s performance at the interview before the Committee of General Managers had been excellent, the decision of the Management to ignore him for purposes of promotion was unjust and discriminatory in nature.
13. Promotions from MMG Scale -II to MMG Scale -III are based on a system of performance appraisal and interview of the eligible Officers. This position was admitted by the learned Counsel for the parties and is even otherwise apparent from ANNEXURE-K, produced alongwith the Writ Petition. In the counter affidavit filed by the Respondent the factors that go into consideration for purposes of promotion have been elaborated. It is stated that the entitlement for promotion is assessed on the basis of overall performance and track record of eligible Officers with the help of prescribed Promotion Appraisal Forms and the Assessment Appraisal Reports of various assignments held during a period of six years preceding the year of promotion as also the confidential reports for the said period. Based on the above material and the interview Officers are classified under three categories namely :-
A + = Eminently suitable A = Only suitable B = Marginally suitable. (not suitable).
It is further stated that the criterion and the procedure for making the promotions and ratings was similar for the period 1.8.1986 to 1.8.1988 during which period Officers securing only A+ ratings were given promotion, although if the vacancies were available the authority could consider promoting Officers placed in Category-A also. For the subsequent years, the Respondents appear to have introduced a marking system for assessment of the suitability of the Officers for promotion according to which 60 marks were allotted for performance of the candidates based on his A.A.Rs, 20 marks for reporting system, whereas the remaining 20 out of a total mark of 100 were set apart for assessment at the interview. The minimum qualifying standard was according to the Respondents fixed at 55 out of a total of 100 marks.
14. That the petitioner was considered for purposes of promotion with effect from 1.8.1986 when he became eligible for such promotion is not in dispute. It is also not in dispute that he was interviewed by the Committee and the petitioner was fully satisfied with his performance at the interview. It is not therefore a case where the employee makes a grievance against denial of promotion to him on the ground that he was not even considered for such promotion. That being so, the question that requires to be examined is whether the consideration accorded to the petitioner was in any way vitiated by any error of law or other defect such as consideration of any material which could not be considered or non-consideration of material which ought to have been so considered. The Respondents’ case is that the petitioner’s suitability for promotion was considered by reference to his performance during the relevant period as available from the relevant record maintained in that connection. Mr. Prabhakar produced before me the relevant record showing the material on the basis of which the petitioner’s claim for promotion was considered. This material inter alia comprises Promotion Appraisal Forms, Assignment Appraisal Reports and assessment of the petitioner’s Performance by General Managers at the interview. A perusal of this material shows that the petitioner was categorised as B+ candidate not only on the basis of his performance but also on the basis of his interview. There is nothing on record to show that any material which was inadmissible has been considered against the petitioner or that any material that was relevant and ought to have been considered has been ignored. Even otherwise, the petitioner has not set up any such case. What Mr. Srinivasan argued was that the appraisal of the petitioner was artificial because the petitioner had not actually worked during the relevant period as a MMG Scale-11 and that his performance in that position could not have been fairly and objectively assessed on the basis of his work and performance in the lower category that is MMG Scale-I. Now it is true that the petitioner did not function as a MMG Scale-II and the question of his promotion to MMG Scale -III arose only after he had been granted promotion from 1.8.1980 in consequence of the judgment of this Court, yet it is difficult to accept the argument that the petitioner could not have been assessed on the basis of the available material even though the same did not pertain to his performance as MMG Scale -II Officer. In the absence of any appraisal reports about the petitioner’s performance as a MMG Scale-II officer, the petitioners’s suitability for promotion had of necessity to be considered by reference to and on the basis of the material and reports available qua the assignments actually held by him during the relevant period, This is so because in the absence of the appraisals relevant to MMG Scale-II cadre, the only other material capable of consideration and evaluation was their pertaining to the petitioner’s performance as a MMG S-I Officer, which was rightly taken into consideration by the Bank. Any other view would in my opinion lead to an anomalous situation in which the petitioner could not be appraised at all because the relevant material i.e., his performance as a MMG S -II Officer was non-existent as he had never worked in that capacity during the relevant period. Any such anomaly can neither exist nor be countenanced and has therefore to be eschewed. That apart even the procedure prescribed by the Bank does not envisage consideration for promotion only on the basis of the performance of the candidate in any particular grade or category. What is required is that the performance of the Officer has to be appraised on the basis of the assignments held by him from time to time. Such being the position the appraisal of the petitioner’s merit and the suitability for promotion on the basis of his performance in the positions he actually held during the relevant period cannot be said to be artifical or legally impermissible so as to vitiate the end result.
15. Mr. Srinivasan, however, contended that the petitioner had not been communicated any adverse report during the entire service career and that the certificate issued to him from time to time by the authorities concerned, clearly showed that the petitioner was a good Officer whose all-round performance had been appreciated by the authorities at all relevant times. He placed reliance upon certain observations made by the single Judge of this Court while disposing of W.P. No. 17655/1983 in support of his plea that this Court had upon evaluation of the said material come to the conclusion that the petitioner had shown excellent performance and could not therefore be denied promotion. He urged that the reasoning given by this Court while granting promotion to the petitioner to MMG-S-II was enough to entitle him to a similar promotion to MMG S-III also.
16. It is not in dispute that no adverse A.C.Rs. have been ever communicated to the petitioner. It is also not disputed that this Court had while disposing of the earlier Writ Petition filed by the petitioner made observations to the effect that the petitioner’s performance had been appreciated by the concerned officers which entitled him to promotion to the MMG S-II. That however does not by itself lead to the conclusion that the assessment of the petitioner’s potential to take responsibility of a higher position as also the suitability for such promotion based on a total view of his career profile as available from the material on record was vitiated. It is fairly well settled that the High Court cannot while examining the validity of an order denying promotion to an employee examine the question of the suitability of any such employee as an Appellate Authority. In other words, it is not open to this Court to independently evaluate the merit and suitability of the petitioner on the basis of the material that is available on record or that may be produced by the aggrieved Officer so as to substitute its own opinion for the opinion expressed by the competent authority. Assuming, though I have refrained from going into that aspect of the matter that I would upon a re-appraisal of the entire material that has been considered by the Respondent arrive at a conclusion that the petitioner ought to have been promoted, I am afraid, any such conclusion cannot be legally substituted in place of the view taken by the competent authority. What this Court is essentially concerned with is as to whether the consideration given to the petitioner is legally proper and not whether the decision arrived at by such a consideration suffer from any error. Judicial review in such matters is of the process by which the decision is arrived at and not of the decision itself. In other words if the consideration accorded to the petitioner is not vitiated by any illegality or irregularity, the fact that another authority or even this Court would have on the same material come to a conclusion different from the one arrived at by the competent authority will be besides the point.
17. That brings me to Mr. Srinivasan’s submission that the petitioner’s performance at the interview being par excellence there is no reason why he should have been ignored or given a B+Grade. It is significant to note that it is not one of those cases where an interview is challenged as being a mere farce or a pretence simply to ignore the claims for promotion of a competent Officer. It is on the contrary, a case where the petitioner considers the interview to have been very well conducted even though like any other person placed in his position he considers his performance to have been excellent. The question however is not of how the petitioner assessed his performance. The question is how the others have assessed him at the interview. The committee comprising the General Manager, who conducted the interview have not been accused of any mala fides or lack of objectivity. In the circumstances, it is difficult to see how an assessment ‘made by three senior Officers of the Respondent-Bank could be questioned or avoided simply because the petitioner considered the result of any such assessment to be unfair. What is significant is that the assessment of the petitioner by the Officers is consistent with the assessment made on the basis of his appraisal reports.
18. Equally inconsequential appears to be the argument that since a large number of Officers who are juniors to the petitioner have been promoted, denial of a similar promotion to the petitioner renders the same illegal. Mr. Srinivasan was not able to point out anything to show that any one of his juniors who had been placed in the same B+ Grade as the petitioner had been granted such promotion. It is not the petitioner’s case even in the Writ Petition that any other Officer who has been given the same rating as the petitioner or a rating below him has been favoured with promotion while denying a similar benefit to the petitioner. The very fact therefore that some Officers junior to the petitioner stole a march over him on account of their better performance is no reason to interfere with the decision taken by the Respondent-Bank.
19. In the result this Petition has no merit and is accordingly dismissed, but in the circumstances of the case without any orders as to costs.