IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16893 of 2005(J)
1. N. KRISHNAN, MANAGER SCALE II,
... Petitioner
Vs
1. SYNDICATE BANK, REPRESENTED BY ITS
... Respondent
2. GENERAL MANAGER (PERSONNEL),
3. DY.GENERAL MANAGER (PERSONNEL),
4. MURALEEDHARAN K.P., CHIEF MANAGER,
5. K. MATHANASEKHARAM, CHIEF MANAGER,
For Petitioner :SRI.P.SANKARANKUTTY NAIR
For Respondent :SRI.M.P.ASHOK KUMAR
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :09/11/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C) No.16893 OF 2005
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Dated this the 9th day of November, 2010
JUDGMENT
The petitioner was originally recruited as an Officer Trainee
in the 1st respondent Bank on 12.12.1977. He was confirmed in
the post of Junior Management Grade Scale-I (JMGS-I) on
18.12.1978. The next post to which the petitioner can aspire for
promotion is that of Middle Management Grade Scale-II (MMGS-
II). The Bank, by circular dated 19.3.1990 initiated steps for
filling up 120 vacancies of MMGS-II by promotion from among
qualified JMGS-I officers. The promotion policy as obtaining in
1990 was Ext.P2, which was revised by Ext.P4 circular dated
16.04.1990. In the promotion policy, both as per Exts.P2 and
P4, the minimum eligibility condition for promotion to the post of
MMGS-II is contained in paragraph 4. As per Note 1 of
paragraph 4 of Exts.P2 & P4, Officers in JMGS-I, who have
worked for 2 years in a branch/office located in a rural area, shall
only be considered for promotion provided he has completed 7
years in JMGS-I, as on 31st December of the previous year. The
W.P.(C)No.16893/05 2
same was made applicable to promotions with effect from
01.06.1988. Further as per Clause 11.10 of Exts.P2 and P4 the
maximum number of officers to be considered for promotion
shall be restricted to 4 times the number of vacancies. The
petitioner had already put in 3 = years of rural service as early
as in 1982. The petitioner also have the minimum service for
consideration for promotion to the post of MMGS-II. Ext.P5 is
the seniority list of JMGS-I officers at the relevant time. The
petitioner was included as rank No. 275 in Ext.P5 seniority list.
Respondents 4 and 5 were juniors to the petitioner and their
ranks in Ext.P5 seniority list were 1163 and 1210. After
completing the procedure for promotions 117 JMGS-I officers
were promoted as MMGS-II. According to the petitioner,
persons like the fourth respondent, who did not possess the
prescribed eligibility service of two years in rural branches were
also promoted by Ext.P6. The fourth and fifth respondents who
could not have been validly included in the zone of consideration
was also promoted. At the same time the petitioner, who was
fully qualified and eligible and much senior to the said persons
W.P.(C)No.16893/05 3
was not promoted. (He was promoted only on 01.09.1993 by
Ext.P1 order.) Aggrieved by the denial of promotion, the
petitioner filed Ext.P9 appeal to the second respondent. But no
orders were passed in the said appeal. Petitioner filed O.P.
No.1500/1991 challenging the promotion process. In the said
original petition, the Chairman & Managing Director of the Bank
filed a counter affidavit stating that the Bank had waived the
condition regarding rural service in the 1990 promotion process,
but no details were furnished therein. By Ext.P12 judgment
dated 06.11.2003, this court set aside Ext.P10 order by which
the petitioner’s representation was rejected and directed the
second respondent appellate authority to reconsider the
petitioner’s appeal with notice to the petitioner and to pass an
order adverting to the contentions of the petitioner. But without
notice to the petitioner and without hearing him, the third
respondent passed Ext.P15 order dated 24.12.2004 holding that
the requirement of rural service as a condition for promotion was
not enforced due to administrative constraints. Petitioner is
challenging Ext.P15 order in this writ petition.
W.P.(C)No.16893/05 4
2. According to the petitioner, the entire process of
selection for promotion is vitiated for having been done against
the specific eligibility and other conditions for such promotion in
the promotion policy framed by the Bank themselves, insofar as
the persons who did not possess the minimum requirement for
promotion have been considered for promotion and persons who
could not have been validly included in the zone of consideration
have been promoted. The petitioner strongly disputes that there
was a waiver of the eligibility condition of minimum two years’
rural service. According to the petitioner, the reason for alleged
waiver of the condition regarding the rural service is also
unsustainable in view of Ext.P3 issued by the Bank, wherein
persons who did not possess the minimum two year rural service
were offered an opportunity to acquire the said minimum
requirement and therefore all officers had sufficient opportunity
to obtain the minimum rural service by 31st December 1989 as
is clear from Ext.P3, opportunity to seek posting in rural
branches were offered as early as on 5.10.1987. The petitioner
further contends that, insofar as admittedly the promotion
W.P.(C)No.16893/05 5
process was initiated for filling up 120 vacancies and only 480
candidates could have been validly included within the zone of
consideration the fact that, more than 1200 persons have been
considered for such promotion would go to show that the specific
conditions in the promotion policy have not been adhered to
while affecting the promotion. The petitioner therefore seeks the
following reliefs:
i. to issue a writ of certiorari or other appropriate writ,
direction or order calling for the records leading to
Ext.P15 and to quash the same.ii. to issue a writ of certiorari other appropriate writ,
direction or order calling for the records leading to Ext.P6
and P7 and to quash the same to the extent of granting
promotions to the ineligible officers like the 4th
respondent from JMGS-I to MMGS-II in the year 1990
and included in Ext.P6 as well the promotion of all the
officers like the 5th respondent who fell outside the zone
of consideration for the above promotion as per Ext.P4
promotion policy.iii. to issue writ of Mandamus or writ direction, or order
directing the respondents 1 & 2 to promote the petitioner
to the scale of MMGS-II w.e.f. 1.10.1990 and to grant all
consequential service benefits including arrears of pay
and allowance.iv. to issue a writ of Mandamus or writ direction or order
directing the respondents 1 & 2 to promote the petitioner
to MMGS-III and SMGS-IV retrospectively w.e.f.
1.11.1999 and 25.10.2003 respectively and to grant all
consequential service benefits including arrears of pay
and allowances.W.P.(C)No.16893/05 6
3. By order dated 3.4.2006 in I.A.No.4155/2006 this
Court directed the petitioner to take out notice to the affected
parties by publishing the notice in a newspaper, under Rule 148
of the Rules of the High Court of Kerala.
4. A counter affidavit dated 15.9.2007 and an additional
counter affidavit dated 11.10.2010 have been filed by the
second respondent. They would take a contention that for the
1990 promotion the stipulation regarding minimum two years
service in the rural area has been waived. According to the
second respondent, the said decision was taken since the officers
to be posted to rural branches to become eligible for promotion
were more than rural vacancies available. Therefore, none of
the officers were disqualified for want of rural service from
participating in the promotion process. According to them, the
promotion was based on seniority-cum- merit and considering
the rank of the petitioner, the petitioner was not within the
sphere of candidates, who could be selected for promotion in
accordance with the marks awarded to them in the promotion
process as per the norms applicable. But nothing is stated
W.P.(C)No.16893/05 7
regarding the waiver of the other condition regarding zone of
consideration except simply denying the same. The fourth
respondent has filed a counter affidavit, wherein he has taken a
contention that he had worked in Mambaram branch in Kerala
State and Mulegumoodu branch in Tamil Nadu which are rural
branches. He has also produced some certificates in support of
his contention. The petitioner has filed a reply affidavit
reiterating that there was no waiver of any of the conditions in
the promotion policy regarding eligibility for promotion at any
time as contended by the Bank. The petitioner would also
contend that as is evident from the classification of branches by
the bank themselves, the Mambaram branch and the
Mulegumoodu branch were classified as semi-urban banks, in
support of which contention the petitioner has produced Exts.P27
and P28, which are extracts from the book published by the bank
classifying various branches of the bank as urban, semi-urban
and rural, wherein the Mambaram branch and the Mulegumoodu
branch were classified as semi-urban banks.
5. I have considered the rival contentions in detail.
W.P.(C)No.16893/05 8
Note.1 to Clause 4 of Ext.P2 reads thus:
“Note:1
Officers in JMGS I, who have worked for 2 years in a
branch/office located in a rural area, shall only be
considered for promotion provided he has completed 7
years in JMGS I as on 31st December of previous year.
This is applicable in respect of promotions to be made
with effect from 1-6-1988.”Clause 11.10 of Ext.P2 reads thus:
“11.10 In any case, the maximum number of officers
to be considered for promotion shall be restricted to 4
times the number of vacancies.”Ext.P2 is dated 17.9.1985. Clauses 4 and 11.10 in Ext.P2 are
verbatim repeated in Ext.P4, which is dated 16.4.1990. It is not
disputed before me that as per the promotion policy published
by the bank, the two conditions were part of the promotion
policy. Their contention is that the Board of Directors had taken
a decision to waive that condition regarding rural service. But
no document whatsoever is produced before this Court to show
that such a conscious decision to waive the condition has been
taken by any authority whatsoever, although in the counter
affidavit, it has been asserted so. In this regard, it is pertinent
to note that in Ext.P11 counter affidavit filed by the respondent
W.P.(C)No.16893/05 9
bank in O.P.No.1500/1991, it has been specifically stated thus in
paragraph 3:
“Apart from this, minimum two years rural branch
service as on the previous 31st December, was also
specified as on eligibility criteria for consideration
for promotion. But in the 1990 promotion process,
the Bank waived the rural service consideration for
the reason that considering the number of eligible
officers there were no sufficient rural vacancies for
posting to enable them to become eligible for
consideration. Hence as the position now stands,
none of the officers was disqualified for the reason
of want of rural service. Moreover, no weightage in
marks was given for rural service in the promotion
process. So the petitioner’s 3 = years rural service
cannot be a deciding factor or relevant condition for
promotion.”Considering that contention, in Ext.P12 judgment in that original
petition, this Court had held thus in paragraph 3:
“3. Sri. Ramakumar, learned counsel appearing
for the petitioner submits that there is no proper
consideration of the appeal. Inviting reference to
the counter affidavit, learned counsel further submits
that apart from the bald statement that the
stipulation regarding rural service was waived, no
particulars as such is furnished. When was it
waived? Why was it waived? There is no answer in
the counter affidavit. But at the same time that it
was waived is not in dispute. Ext.P1 is the
Promotion Policy issued on 16-4-1990. It is based
on that Policy the selection was made. The selection
was made within a few months since the select list
as such was published in August 1990. In any case
a deviation from the Policy already declared is
admittedly not notified.”(underlining supplied)
W.P.(C)No.16893/05 10
it is taking into account these facts that by Ext.P12 judgment,
the appeal was directed to be re-considered. But in Ext.P15
order, which was passed pursuant to the judgment, also nothing
is stated as to who, when and why the condition has been
waived. Even today, in spite of giving several chances to the
bank, the bank is not in a position to produce any document
which would prove that such a conscious decision was taken by
any authority to waive the eligibility condition. The contention
of the respondents in respect of the same is that the number of
officers, who aspire for promotion were more than the number of
rural branches available. But this contention is not supported by
Ext.P3 issued by the bank as early as on 7.1.1988. The said
Circular reads thus:
“We invite the attention of our officers to the
following circulars on the above subject:i) Cir. No.282/85/BC dated 17/9/1985
ii) Cir. No.332/87/BC 5/10/1987
iii) Cir. No.381/87/BC dated 12/11/1987
We had conveyed the Government guidelines
on the requirement of completion of rural and semi-
urban service for the purpose of promotion vide our
Cir. No.282/85/BC. In terms of clause 4 of the said
circular, an officer in JMGS I is required to work in a
rural area for a period of atleast two years and an
officer in MMGS II is required to work in rural/semi
urban area for a period of atleast 3 years for beingW.P.(C)No.16893/05 11
considered eligible for promotion to the next higher
grade. This is, however, in addition to other
eligibility criteria laid down in the promotion policy.Inspite of the guidelines having been
circulated as early as in 1985, many of the officers
have not yet fulfilled the condition of completing the
rural and/semi urban service. With a view to
providing an opportunity to such officers who are
likely to be in the zone of consideration for
promotion to MMGS II and MMGS III to satisfy the
requirement, Circular No. 332/87/BC dated
5/10/1987 was issued advising certain category of
officers to indicate 3 zones in the order of
preference. Since the number of rural and semi
urban branches in certain zones is very limited,
officers were advised to indicate 3 zones so as to
accommodate them in one of the zones based on
the availability of vacancies.However, the response to the said circular has
not been very encouraging. Besides, some of the
officers have indicated a few places of their choice
instead of 3 zones as required in the circular.
Officers are hereby advised that the options
exercised which are not in conformity with our
circular will not be considered for the purpose of
posting.The circular is being issued with a view to
providing one more opportunity to our officers to
indicate their preference in terms of our circular
No.332/87 so that they would not deny themselves
of being considered for promotion. We are
therefore, advising such officers who got into JMGS I
on or before 1/1/1981 and into MMGS II on or
before 1/7/1983 to indicate three zones in the order
of preference in the format prescribed in the circular
332/87/BC. Such of the officers who have already
exercised their options but not in accordance with
the circular are also required to forward a fresh
application. Requests for a particular place will not
be considered. However, officers exempted under
circular No. 381/87/BC dated 12/11/1987 need not
respond to this circular.All such requests should be directly sent to
the Personnel Manager, Personnel AdministrationW.P.(C)No.16893/05 12
Section, Personnel Department, H.O. Manipal so as
to reach him on or before 31/1/1988, marking a
copy to the concerned Zonal Office. Requests
received after 31/1/1988 will not be entertained.It is once again reiterated that if the request
is not received by us on or before 31/1/1988, it will
be deemed that the officer is not interested in
completing the rural and/or semi urban term and it
will be noted accordingly for the purpose of
promotion.Branches/Offices are advised to display a copy
of this circular in the Notice Board for the
information of officers”
(underlining supplied)
The said circular does not at all indicate that the Bank was not
able to provide opportunity for all those who seek posting at
rural branches. On the other hand, that circular shows that
many of the officers did not respond to the circular inviting
preference for being posted in rural branches. It further shows
that despite repeated chances having been given officers did not
avail of those opportunity to work in rural branches to acquire
the eligibility condition for promotion despite having been made
aware of the necessity. After having issued Ext.P3, I fail to
understand how the bank can take a contention that it was
because of want of sufficient vacancies in rural branches that
officers could not be deputed to rural branches so as to enable
W.P.(C)No.16893/05 13
them to acquire eligibility for consideration for promotion. As
such, the bank has not been able to satisfy me with any material
whatsoever to show that there was actually a decision to waive
the eligibility condition of two years service in a rural branch.
Admittedly, the promotion process was without taking into
account the said eligibility condition. That being so, the
promotion process initiated by circular dated 19.3.1990 is clearly
against the promotion policy declared by the bank themselves.
6. As per Clause 11.10 of both Exts.P2 and P4, the
maximum number of officers to be considered for promotion was
restricted to four times the number of vacancies. Admittedly,
the number of vacancies available was only 120. Therefore, the
maximum number of candidates who could have been
considered for promotion in that particular selection was only
480. The fourth respondent was serial number 1163 and the
fifth respondent was serial number 1210 in Ext.P5 seniority list
of JMGS-I Officers. Both of them were outside the zone of
consideration as per Clause 11.10 of the promotion policy. That
shows that almost ten times the number of vacancies of officers
W.P.(C)No.16893/05 14
were considered for promotion in 1990 promotion process, which
is also directly against the promotion policy. The Bank’s
advocate would contend that it is for having better field of choice
that the zone of consideration was expanded. I am of opinion
that after declaring a promotion policy the Bank could not have
expanded the zone of consideration on the ground of better field
of choice without amending the promotion policy or without an
enabling provision to do so, which have not been brought to my
notice.
7. The fourth respondent would contend that he had
rural service in the Mambaram branch and the Mulegumoodu
branch. But the petitioner has produced Exts.P27 and P28,
which are extracts from the book relating classification of
branches published by the bank themselves, wherein the two
branches are classified as semi-urban branches. The petitioner
has also produced before me, for perusal, the original of the said
book, which corresponds to Exts.P27 and 28. As such, the
contention of the fourth respondent that he had two years’ rural
service does not appear to be convincing. Even apart from the
W.P.(C)No.16893/05 15
same, he is included as serial number 1163 in Ext.P5 seniority
list. Therefore, he was clearly outside the zone of consideration
as per Clause 11.10 of the promotion policy. Although the fifth
respondent also has filed a counter affidavit, he also could not
effectively controvert the contentions of the petitioner regarding
violation of Clause 11.10 in Exts.P2 and P4. After having laid
down a promotion policy laying down specific terms and
conditions for the promotion process, the bank cannot deviate
from the same without sufficient reasons and without an
enabling provision to do so. On both grounds regarding the
eligibility condition for promotion as well as the condition
regarding the number of persons to be included in the zone of
consideration, the bank has sadly failed to convince this court
that they have effected the promotion complying with the terms
and conditions prescribed in Exts.P2 and P4 promotion policies.
The writ petition is liable to be allowed on that ground alone.
Therefore, I am not going into the other contentions of the
petitioner raised in this writ petition, which are left open to be
agitated, if necessity arises in future proceedings.
W.P.(C)No.16893/05 16
8. In view of my above findings, Ext.P15 and the entire
promotion process initiated by circular dated 19.3.1990 for
promotion from the post of JMGS -I to MMGS -II which have
culminated in Ext.P6 are clearly unsustainable and are therefore,
quashed. Respondents 1 to 3 are directed to re-do the entire
promotion process pursuant to the circular dated 19.3.1990, in
accordance with the promotion policy as obtaining at that time
namely, the eligibility condition of minimum two years’ service in
a rural area and the number of persons to be considered for
promotion restricted to four times the number of vacancies
to be filled up, namely, 120 x 4 = 480. Only the persons, who
were eligible as on the date of issue of the circular dated
19.3.1990 alone shall be considered for this purpose. The said
process shall be completed within a period of two months from
the date of receipt of a copy of this judgment.
9. This Court is very well aware of the consequences of
setting aside promotions of 117 persons after 20 years. The
petitioner has been promoted in 1993. But he is stagnating in
MMGS II ever since. At the same time, persons far junior to
W.P.(C)No.16893/05 17
him, who were promoted earlier such as respondents 4 and 5
have been further promoted to higher posts. All of them will
have to come back to original post of JMGS -I in view of the
above direction. Being the conscious of the above contingency, I
had, during arguments, put it to the learned counsel for the bank
to save the situation by granting the petitioner promotion with
effect from 1990 by themselves. I had granted almost a
month’s time for this purpose and after consulting the superior
officers of the bank, the learned counsel for the bank expressed
inability to agree to the said suggestion put by the Court. It is
under the above circumstances, this Court was forced to declare
the entire promotion process as null and void.
10. The petitioner has been fighting for twenty years for a
right cause, which has been steadfastly resisted by the bank for
all these years, without giving any acceptable justification for
their action. I am of opinion that in view of the conduct of
respondents 1 to 3, the petitioner is entitled to his costs in this
writ petition. Accordingly, respondents 1 to 3 shall pay costs of
Rs.15,000/- to the petitioner, which shall be paid within one
W.P.(C)No.16893/05 18
month from today. It would be open to the bank to recover it
from the officers responsible for the situation.
The writ petition is allowed as above.
S. SIRI JAGAN, JUDGE
acd
W.P.(C)No.16893/05 19