Abhishek Majumder And Ors vs Tripura Gramin Bank And Ors

[1] Petitions arise in similar background. Petitioners have challenged the decision of the respondent No.1 Tripura Gramin Bank, not to permit them to contest for the fast track promotion to the post of Officer Middle Management (Scale-III).

[2] Brief facts are as under :

Abhishek Majumder, petitioner of WP(C) No.27/2020, initially joined the respondent No.1 Bank in the year 2011 as a Clerk having been selected in a competitive examination. In the year 2012, he was selected as a direct recruit for the post of Computer Engineer. The petitioner thereafter was selected as a direct recruit on the post of Officer Middle Management (Scale-II) and was appointed to the said post on 27th August, 2014.

[3] On 11th December 2019, the respondents announced the promotion process for Middle Management (Scale-III) from the officers in general scheme for Middle Management (Scale-II). In all, 4 vacancies were notified, 2 of which would be for normal channel promotion and 2 for fast track channel promotion. Applications were invited from those officers who meet the eligibility criteria which were also specified in the same publication. For fast track channel what was required was 5 years experience as Officer Middle Management (Scale-II), relaxation to be granted in certain cases. This publication also prescribed the selection process, both for normal channel and fast track channel promotions.

[4] The petitioner had the requisite experience as Officer Middle Management (Scale-II) for fast track channel promotion. He, therefore, applied for promotion to the post of Officer Middle Management (Scale-III) on 16th December, 2019. The respondents, however, conveyed to the petitioner under a letter dated 30th December, 2019 that:

"Sir,

In reference to the subject cited above it is to inform you that the advertisement bearing No.TGB/HO/P&A/F.10?Cir - 75/2019 dt.11.12.2019 is published for inter-scale Promotion of Officers for general stream only. Your appointment letter bearing No.TGB/P&A/Recruit/991/2014 dt.27.08.2014 in this Bank is made under Specialist cadre as Officer Scale-II(IT).

In view of the above, you application dt.16.12.2019 for promotion from Officer Scale - II to Scale-III in general stream is not considered."

The petitioner has challenged the said communication.

[5] Facts of WP(C) No.28/2020 are similar. In this case, petitioner Pritam Saha is working with the respondent No.1 Bank as an Assistant Manager. He had completed more than 3 years of service as Officer Middle Management (Scale-II) and has cleared Junior Associate of Indian Institute of Bankers (JAIIB) and Certified Associate of Indian Institute of Bankers (CAIIB) courses. He contends that as per the recruitment rules of the Bank, he was eligible for being considered for promotion to Officer Middle Management (Scale-III) in fast track channel for which the Bank had invited applications under the said advertisement dated 11th December, 2019. In response to the said advertisement, he applied on 16th December, 2019. His application was also rejected by the Bank by a communication dated 30th December, 2019 citing the same reason as in case of petitioner Sri Abhishek Majumder. He has also challenged the same communication.

[6] Case of the petitioners is simple. They contend that as per the recruitment rules, for promotion to the post of Officer Middle Management (Scale-III) in fast track channel, eligibility criteria is that the candidate must have 5 years experience as Officer Middle Management (Scale-II). One year relaxation each is granted in case a candidate has passed the courses of JAIIB and CAIIB. Petitioner Abhishek Majumder has passed the JAIIB course whereas the petitioner Pritam Saha has passed both. They contend that as per the recruitment rules, there is no distinction of the candidate belonging to general stream of Officer Middle Management (Scale-II) and specialized cadre.

[7] The respondents have appeared and filed affidavit in which only stand taken is that both the petitioners were recruited as Officer Middle Management (Scale-II) as Specialists. Both have the background of information technology. They do not belong to the general stream of Officer Middle Management (Scale-II). The Bank does not have any sanctioned post for Officer Middle Management(Scale-III) in Specialist cadre. In this context, the respondents have relied on the relevant recruitment rules as well as a communication dated 4th December, 2019 issued by the National Bank for Agriculture and Rural Development (NABARD) to the Chairman, Andhra Pradesh Grameena Vikas Bank in which it was clarified as under :

"Please refer to your letter APGVB/ PER&HRD/921/2019-20 dated 30th September 2019 on the captioned subject.

In this connection, we advise you that the promotion processes is valid only to the extent of existing vacancies as per Man Power Plan approved by the Board of the bank. As the recruitment was under taken for specialized jobs, promotion will be carried out for these officers in the same specialized cadre as per approved plan. A specialist officer can‟t be promoted in general category vacancy.

However, Board may take decision on merger of Specialist category cadre with General Category at appropriate scale, which may be part of man power planning of RRB, prepared in consultation with Sponsor Bank."

[8] The petitioners have filed rejoinders along with which they have produced certain documents, mainly responses from NABARD to certain queries made by other officials of the Bank under Right to Information Act, 2005 ("RTI" for short) concerning structure of different cadres in the Gramin Banks. Reference to these documents would be made at an appropriate stage.

[9] Appearing for the petitioners learned counsel Mr. Sankar Lodh submitted that the recruitment rules do not make any distinction between Officer Middle Management(Scale-II) belonging to the general stream or special cadre when it comes to grant of promotion to the post of Officer Middle Management(Scale-III). Such a distinction has been artificially created by the respondents which has no statutory backing. Such executive instructions cannot run counter to the statutory rules. He, therefore, submitted that the objection of the Bank raised under the impugned communications is wholly untenable. Other than this ground, the Bank has not raised any objection to the eligibility of the petitioners. In other words, there is no dispute about the petitioners holding requisite experience in the cadre of Officer Middle Management (Scale-II). He, therefore, prayed that the impugned communications be set aside and the Bank may be directed to consider the candidature of the petitioners as per their performance in the selection test which they have already undertaken pursuant to interim order of this Court.

[10] On the other hand, learned counsel for the Bank opposed the petitions and contended that the petitioners having been recruited in the cadre of Officer Middle Management(Scale-II) in Specialist cadre are not eligible for promotion to the Officer Middle Management(Scale-III) which posts are created only for the general stream. He placed heavy reliance on the communication from NABARD dated 4th December, 2019 which, according to him, clarifies this position. He submitted that the petitioners were recruited to their present posts when the Regional Rural Banks (Appointment of Officers and Employees) Rules, 2010 (hereinafter to be referred to as the "the Recruitment Rules of 2010") were in force in which there was a clear distinction made in the cadre of Officer Middle Management(Scale-II) being recruited against specialist quota and the general stream. He lastly contended that the petitioners ought to have joined NABARD and the United Bank of India which is a sponsorer Bank for Tripura Gramin Bank. In absence of these respondents no effective relief can be granted.

[11] Before addressing the rival contentions on the basis of materials on record, it may be noted that on 10th January 2020, by way of ad-interim relief it was directed that the respondents shall accept the applications of the petitioners for promotion to the post in question, permit them to undertake written examination as well as conduct their oral interview, if they pass the written examination, however, their final result shall not be published without the orders from the Court. It was clarified that these directions shall not result in any equity in favour of the petitioners. Accordingly, the petitioners were allowed to participate in the selection process for fast track promotions. On 12th February, 2020 a clarification was issued that the respondents can complete the entire process of normal channel promotions. However, results for the fast track channel promotions shall not be declared. That is how the position stands today.

[12] The Regional Rural Banks Act, 1976 (hereinafter to be referred to as "the said Act") was enacted to provide for incorporation, regulation and winding up of Regional Rural Banks with a view to developing rural economy. Sub-section (1) of Section 3 of the said Act provides that the Central Government may, if so requested by a Sponsor Bank, establish in a State or Union territory one or more Regional Rural Bank. Section 17 of the said Act pertains to staff of Regional Rural Banks. Sub-section (1) of Section 17 provides that a Regional Rural Bank may appoint such number of officers and other employees, as it may consider necessary or desirable, for the efficient performance of its functions and may determine the terms and conditions of their appointment and service. Section 29 of the Act is a rule making power. Sub-section (1) of Section 29 provides that the Central Government may, after consultation with the National Bank and the Sponsor Bank, by a notification in Official Gazette make rules for carrying out the provisions of the Act. Sub-Section (2) of Section 29 provides that in particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, containing Clauses (a) to (c) of Sub-Section (2). Clause (ba) thereof pertains to the manner in which the officers and other employees of the Regional Rural Banks shall be appointed.

[13] In exercise of powers conferred under Section 29 read with Section 17 of the said Act, the Central Government framed the Regional Rural Banks (Appointment of Officers and Employees) Rules, 2017 (hereinafter to be referred to as "Recruitment Rules of 2017"). As per Rule 3 of these rules, the category of posts to which officers and employees of the Regional Rural Banks may be appointed shall be as specified in column (3) of the First Schedule. Rule 5 of the said rules lays down the method of appointment. Rule 13 pertains to reservation and relaxations Sub-Rule (3) whereof reads as under :

"(3) A one-time relaxation of one year service during the entire service period will be given to such candidates who have passed Junior Associate of the Indian Institute of Bankers (JAIIB) of Indian Institute of Banking and Finance for promotion both under the normal channel and fast track channel to the Group „A„ posts specified in column (3), against serial numbers 1, 2 and 3, of the First Schedule and one more year in case of such candidates who have passed Certified Associate of the Indian Institute of Bankers (CAIIB) of Indian Institute of Banking and Finance."

[14] Sl. No.2 in the third Schedule of the Recruitment Rules of 2017 pertains to Officer Middle Management(Scale-II) and it prescribes appointment on the said post by direct recruitment as well as promotion. 25% of the posts would be filled up by direct recruitment and 75% by promotion. Out of the vacancies for direct recruitment, 10% would be filled up from Specialist cadre, namely, Information Technology, Agriculture, Treasury, Law, Marketing, Chartered Accountants etc. and 15% from experienced officers. For Information Technology, qualification for direct recruitment prescribed are, Bachelor's degree from a recognised University in Electronics/Communication/Computer Science/Information Technology or its equivalent with a minimum of 50% marks in the aggregate and one year experience in the relevant field.

[15] Sl. No.3 in the third Schedule of Recruitment Rules of 2017 pertains to Officer Middle Management(Scale-III). The mode of appointment is 10% by direct recruitment and 90% by promotion. Out of the vacancies for promotion, 50% would be filled up under the normal channel and 50% under fast track channel. The eligibility for promotion is prescribed in Column (7) to Sl. No.3 of the said Schedule and reads as under :

Eligibility for promotion

(7)

Promotion shall be made from amongst the officers holding the post of Officer Middle Management (Scale II) possessing the following experience and/qualification:

(I) Normal channel:

(i) must have seven years' experience as Officer Middle Management (Scale II) on full time and regular basis;

(ii) Must have been confirmed in the feeder grade.

(II) Fast Track Channel:

(i) must have five years' service as Officer Middle Management (Scale II) on full time and regular basis;

(ii) must have been confirmed in the feeder grade

The detailed procedure for selection for promotion to normal channel and fast track channel has also been laid down.

[16] With this background, we may collate the facts of the case which are not in dispute. Both the petitioners were recruited directly to the post of Officer Middle Management(Scale-II) on Specialist cadre of Information Technology. They have put in requisite number of years of service for being eligible for fast track channel promotion to Officer Middle Management (Scale-III). Petitioner Abhishek Majumder has put in 4 years of service on his current post with JAIIB course passed whereas Pritam Saha has completed more than 3 years of service with both JAIIB and CAIIB courses passed.

[17] Short question is, can their candidature be kept out of consideration since they have been recruited in the Specialist quota in the feeder cadre? We have noted the contents of the rules for promotion contained in the Recruitment Rules of 2017. These rules are framed in exercise of powers under sections 17 and 29 of the Act and thus have statutory force. What these rules prescribe is that for the post of Officer Middle Management(Scale-III), 10% of the vacancies would be filled up through direct recruitment with which we are not concerned. Remaining 90% would be filled up by way of promotion. These vacancies would be equally divided for normal channel promotion or fast track promotion. For fast track promotion, experience required is shorter than in normal channel. The promotion would be from amongst the officers holding the post of Officer Middle Management (Scale-II). These rules thus make no distinction between an Officer of Officer Middle Management (Scale-II) recruited against the General quota or Specialist cadre. No such distinction can be introduced through executive instructions. In other words, when the rules prescribe eligibility for promotion, no additional condition can be imposed by way of executive instructions. It is well settled that where the recruitment rules are silent on any aspect, it is always open to the employer to fill the gap through executive instructions. However, it is equally well settled that the executive instructions cannot run counter to statutory recruitment rules. In other words, if the field is occupied by statutory rules, the executive instructions cannot govern the situation.

[18] Reference in this respect can be made to the decision of Supreme Court in case of Dr. Rajinder Singh Vs. State of Punjab and Ors. reported in (2001) 5 SCC 482 in which it was observed as under :

"6. We do not agree with the High Court that even without amending the rules, the respondent State could have declared the PCMS Class II as PCMS Class I. The notification dated 9- 4-1989 reads as:

"In pursuance of the recommendations of the Committee for the removal of anomalies in the revised Scales of pay of Punjab Civil Medical Services, the President of India is pleased to declare the PCMS (Class II) as PCMS (Class I). There will be only one service with the nomenclature of PCMS (Class I) with effect from 1-1-1986.

The necessary amendments in the service rules of PCMS (Class II) and PCMS (Class I) will be made separately.

This issue is with the concurrence of the Finance Department conveyed vide their I.D. No.l0/27/89- FPI, dated 20-3-89." (Emphasis Supplied)

A perusal of the notification clearly indicates that the Government itself was aware that the two classes of service cannot be equated or treated alike without amending the rules. There is no dispute that the Rules have not been amended so far. The Departmental Promotion Committee, therefore, erred in recommending the promotion of respondent No.3, ignoring the Rules and only relying upon a notification.

The settled position of law is that no government Order, notification or Circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a government order and ignoring the mandate of Article 309 of the Constitution."

[19] In case of K K Parmar and Ors. Vs. H. C of Gujarat thr. Registrar & Ors. reported in 2006 AIR SCW 2856 the Apex Court held as under :

"19. A bare perusal of the purported Resolution adopted by the Government of Gujarat on 20th March, 1982 clearly shows that the same was applicable only in relation to the Head of the Departments. A rule framed by the State in exercise of its power under proviso appended to Article 309 of the Constitution of India may be applicable to the employees of the High Court but the executive instructions issued would not be and in particular when the same is contrary to or inconsistent with the Rules framed by the Chief Justice of the High Court in terms of Article 229 of the Constitution of India. The Resolution dated 20th March, 1982 ex facie applies to the cases of appointment by promotion to the post of Head of the Department. It, therefore, had no application to promotion to the post of Section Officers, who are not Head of the Department."

[20] The recruitment rules in question are detailed. In addition to laying down the method of filling up the post of Officer Middle Management (Scale-III) they also lay down the eligibility criteria as well as the selection process for normal as well as fast track channel promotions. In the context of eligibility for promotion to the post in question, the rules make a distinction between normal channel promotion and fast track promotion. In each case, Officer of Middle Management (Scale-II) from the feeder cadre; requirement of experience varies. It cannot, therefore, be stated that the rules are silent on the subject of the eligibility criteria for promotion to the post of Officer Middle Management (Scale-III). No executive instructions, therefore, could have been issued contrary to these rules. When the Bank holds the position that the petitioners who were recruited as Officer Middle Management (Scale-II) in Specialist cadre, they are not eligible for promotion, the same is contrary to the statutory rules. Supplying any such additional condition without amending the rules would not be permissible. As far as the Recruitment Rules of 2017 are concerned, once an officer is appointed to the post of Middle Management (Scale II) in any stream, for the purpose of promotion to the higher post of Scale III, his birth mark disappears.

[21] No literature is produced on record in support of the averment made in the affidavit-in-reply that the Bank does not have any sanctioned post for Officer Middle Management (Scale-III) in Specialist cadre. In any case, even if there is any such policy decision, the same cannot be given legal shape unless and until the relevant rules are amended. Without amending the Recruitment Rules of 2017 and in particular, the eligibility criteria for promotion to the Officer Middle Management (Scale-III), the Bank cannot create a separate cadre in the said scale which would be occupied only by general stream recruitees of Officer Middle Management (Scale-II) cadre.

[22] The objection of non-joinder of necessary parties is wholly technical. What the petitioners have challenged is the decision of the Bank to hold them ineligible for promotion. If the decision of the Bank is based on any directives or in consultation with the Sponsor Bank or NABARD, it is internal issue between the Bank and the said authorities. So far as I am concerned, I do not find any inhibition in granting the final relief to the petitioners without the presence of the said authorities. The said authorities, therefore, cannot be stated to be necessary parties.

[23] The counsel for the petitioners has referred to the answers received by some of the employees of other Gramin the Banks who had raised queries under the RTI Act in order to contend that the present position adopted by the respondents is not the consistent practice of other Rural Banks nor is supported by any statutory provisions. It is not necessary to dilate into this aspect in view of the factual and legal position discussed above.

[24] In the result, the impugned communications dated 4th December, 2019 and 30th December, 2019 in both the petitions are set aside. The petitioners are held eligible for being considered for promotion in fast track channel to the post of Officer Middle Management (Scale-III) for which their tests are already conducted. The respondents shall now proceed to declare the result of the examination and will be at liberty to grant promotions to the selected candidates. Both petitions are allowed in above terms and disposed of accordingly. Pending application(s), if any, also stands disposed of.