ORDER
1. Petitioner entered service of respondent-Bank as an Officer Trainee on 20-12-1971 and later was posted as Probationary Officer at Vijayawada on 3-8-1972. The petitioner feels that due to some exchange of words on 26-12-1972, with the then Manager under whom he was working, he fell
out of favour of the management. The said exchange of words took place on account of some complaint by the customer of the bank. The petitioner claims that he was not at all at fault and he had not misbehaved, as was complained, Inspite of this, his services were terminated by afl order dated 16-3-1973 without any opportunity to the petitioner, the petitioner filed W.P.No. 2581 of 1973 before this Court to challenge the said termination. He succeeded. Writ Appeal preferred against the learned single Judge’s judgment was dismissed in W.A.No,72 of 1976. It was however pointed in the said proceedings by the Court that respondent was not precluded from conducting or, holding a departmental enquiry against the petitioner in relation to the alleged misbehaviour complained by the customer. As a result of petitioner’s success in the said proceeding, the respondent-bank gave him a posting as Probationer Officer in Vijayawada Main Branch on 3-8-1972. Though as per Rules he should have been on probation only for one year in all, due to the complaint against him, the probation was extended arid was declared as completed only on 17-6-1978. In the mean time departmental proceedings were initiated against the petitioner by serving a memo. Petitioner’s claim, for supply of certain copies to face the charge, was not complied and petitioner was found guilty of the charges framed against him. Punishment of censure was imposed against him by order dated 1-7-1978. Petitioner’s appeal to the Joint General Manager failed. During the pendency of the said appeal the respondent-bank promoted 147 persons, who were juniors to the petitioner. They were promoted by order dated 1-1-1979. Petitioner’s case was not considered at all. The appeal preferred by the petitioner having been dismissed on 15-6-1979 by the Joint General Manager, petitioner challenged the same by W.P. No. 4911 of 1980. The writ petition was allowed by this Court by judgment dated 1-4-1983. It was observed that no enquiry should have been conducted nor any punishment imposed on petitioner in relation to the allegations made in 1972 when the probation was declared as satisfactorily
completed on 17-6-1978. The said judgment became final as no appeal was preferred. The petitioner made a representation during the pendency of W.P.No. 4911 of 1980. By the said representation dated 24-3-1982, he requested the respondent-bank that he should have been promoted with effect from 1-1-1979 when 147 persons junior to him were promoted The said representation was not considered but later, on 12-4-1982 the petitioner was informed that he was promoted as from 1-4-1982. Subsequently the date of promotion was modified and the promotion was made effective from 1-1-1982. After the disposal of W.P.No. 4911 of 1980, the petitioner again represented by letter dated 4-4-1984. It was requested again that his promotion should be from 1-1-1979 when his juniors were promoted. It was brought to the notice that as per the promotion policy which existed at the relevant time, the promotion was automatic and could be over-looked only for unsatisfactory work or performance. The petitioner says that his work was never found unsatisfactory and he never received any adverse remarks. New Service Regulations came into force from 1st July 1979 wherein certain changes were made in the promotion policy and, it was not merely by seniority. The petitioner’s representation was rejected on24-5-1984. Therefore, he preferred further representation to the General Manager. That was also rejected on 3-6-1989. The petitioner submits that he was entitled to be promoted on 1-1-1979 as per the then existing policy and the promotion of 147 Officers, who were juniors to him was totally arbitrary, unjust and unreasonable without considering his claim. In short the petitioner’s claim is that a direction be given for declaration that the action of respondent-bank in promoting 147 junior officers to him on 1-1-1979 by ignoring his claim was arbitrary, unreasonable and unjust and violative of Articles 14 and 16 of the Constitution of India and a consequential direction to respondent-bank be given to promote the petitioner from 1-1-1979 by giving all consequential benefits or to pass such other order as deemed fit and proper in the circumstances.
2. No counter was filed by the respondent-bank though the main writ petition was pending for almost nine years. It may be pointed out that the writ petition was instituted on 29-6-1989. However, the learned Counsel for respondent has attempted to justify action of the respondent-bank.
3. Without going into the merits of the case I think that the writ petition insofar as it claims the relief that the petitioner should be promoted in his appropriate place, above 147 Officers who were promoted on 1-1-1979, cannot be granted on the simple ground that petitioner has not made those 147 Officers as parties to this writ petition. They were necessary parties to the writ petition as the petitioner was claiming relief which would directly affect those persons. Whether petitioner’s claim is correct or not is not the question, but the fact remains that if the relief to the petitioner is to be granted it would affect those persons who have been placed above him. It was for this reason for the petitioner ought to have joined all those persons. Faced with this difficulty the learned senior Counsel Sri Venkat Reddy contended that it was not necessary in the peculiar facts and circumstances of this case to join those 147 persons as respondents. It is argued that the petitioner is only challenging the wrong method of respondent-bank in giving promotions in 1979. The petitioner has no grievance against the respondents. In support his argument Sri Venkat Reddy has tried to draw some strength from the decision in V.P. Shrivastava v. State of Madhya Pradesh, 1996 (1) SLR 819. I am afraid this decision is not applicable to the facts of the present case. In Shrivastava’s case (supra) the facts were very singular. In that case the employer/respondent had made certain promotions on ad hoc basis of some persons. When the petitioners were promoted they were placed in seniority list below the ad hoc promotees. The promotion of the petitioner was not ad hoc. They were promoted in regular course. While challenging seniority so fixed by the respondent-bank, the petitioners had not made the ad hoc promotees as respondents. The Administrative Tribunal,
before whom the matter came., refused to give relief to the petitioners on the ground that all promotees were not impleaded as parties. The Tribunal felt that even ad hoc promotees ought to have been made parties to the said petition. In that factual position, the Supreme Court disagreed with the Tribunal and held that where the initial appointment was only ad hoc and was not according to the rules and made as a stop gap arrangement, the officiation in such post can never be taken for counting the seniority. In that view of the matter, the Supreme Court held that not impleading all those ad hoc promotees, did not warrant the dismissal of the petition. The Supreme Court held that in the petition what was in fact challenged was not the ad hoc promotion as such, but the position given to those ad hoc promotees in the seniority list. The Court further held that the principle of determination of seniority which was followed by the State Government was the only point under challenge and in such a situation the only necessary party was State and not the ad hoc promotees. It will thus be seen that the proposition in the said case has no application to the facts of the present case. Here the petitioner is challenging the very promotion of those 147 persons ahead of him. Had he been promoted from 1-1-1979 and had he been placed in seniority below those persons then the case relied upon by Sri Venkat Reddy would have helped but that is not the case.
4. On the other hand, in Ishwar Singh v. Kuldip Singh, , the Supreme Court stated that a writ petition challenging any appointment without impleading the selected candidates was not maintainable. The same was reiterated in J. Jose Dhanapaur v. S. Thomas, . The view has been reinforced recently in Arun Tewari v. Zila Mansari Shikshak Sangh, AIR 1998 SC 331, the Supreme Court observed that the employees, who were directly concerned and affected were not made parties. In fact not even few or some of those, who would be affected were made parties in a representative capacity. The Supreme Court observed that considering the large number of the affected persons atleast
some of them could have been made respondents, if not ail. The Court approved the observations made by the Supreme Court in Prabodh Verma v. State of U.P., (5) and observed to the following effect :
“The High Court ought not to have decided a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or atleast some of them before it as respondents in a representative capacity. The observations apply with equal force here.”
On this ground alone the Supreme Court found that the petition was not maintainable. In view of this legal position, I think that the writ petition insofar as it seeks relief that the petitioner should be promoted from 1-1-1979, above the 147 persons promoted on that date, cannot be accepted.
5. The learned Counsel however, submitted that in case the Court holds that the writ petition cannot be considered for the relief of granting promotion from 1-1-1979 then atleast the petitioner be given monetary benefits without disturbing the seniority of the persons placed above him. It was urged that he should be given the pay scale in the promotional post as if he was promoted onl-1-1979. In other words, the learned Counsel said that the deeming fiction should be invoked by granting him fixation of his pay in such a manner that he would not lose monetarily, though he has lost the seniority. I think such course would not be appropriate one. If by, any such deeming fiction his pay is fixed now, his pay could be more than the persons promoted after 1979 till 1-1-1982 when his promotion has become effective. That would create complications because then all persons above him would claim that a person junior to them cannot get higher pay than theirs, therefore, such a relief also will not be appropriate for the very ground on which the main relief cannot be granted.
6. Having said all this, I think that there is some thing which ought to be done to redress
the grievance of the petitioner. The petitioner’s grievance is genuine. The representations made by the petitioner have been rejected without . any valid ground. The position as it stands now is clearly that petitioner was not guilty of any misdemeanour. The punishment of censure was successfully challenged in W.P. 4911 of 1980. The petitioner’s contention that his work was never unsatisfactory and he never received any adverse remarks remains uncontroverted. The representation of the petitioner was rejected by communication dated 23-1-1989 with a cryptic reply that petitioner did not qualify for promotion with effect from 1-1-1979 because at the relevant time the Officer whose record of service was satisfactory during the previous five years were only entitled to be promoted. It was stated that petitioner did not qualify for promotion as he had not qualified for promotion. It is nowhere stated as to why he was not qualified for promotion. It is not disputed that the promotion policy as it existed till 1979 was based on seniority. The policy was changed by new Service Regulations which came into force from 1st July, 1979 only. Thus the petitioner’s case as on 1-1-1979 was governed by the policy which existed prior to 1-6-1979. How the petitioner was not qualified for promotion has not been elaborated in the letter rejecting the representation of the petitioner. No counter is filed to justify the claim. On the other hand, the petitioner has produced recommendatory letter dated 10-1-1979 issued to him, by the Regional Development Manager. By this letter the petitioner’s performance was described as ‘spectacular’ in reaching the annual target. The petitioner was said to have made tireless efforts. It will thus be seen that there was some thing more than the eye sees in the matter. Though the petition seeking main relief cannot be accepted on the aforesaid grounds, I think that for the wrong done to the petitioner, the respondent-bank should make amends in some measure and I direct the respondent-bank to pay Rs. 15,000/- to the petitioner for illegally postponing his promotion till 1-1-1982 and not considering him from 1-1-1979.
7. With the above directions, the writ petition is disposed off. No costs.