All India State Bank of Bikaner and Jaipur Officer Association vs State Bank of Bikaner and Others

A.K.Mathur, J.—All these three writ petitions are connected with each other, therefore, they are disposed of by this common order.

For the convenient disposal of all these writ petitions, the facts given in S.B.Civil Writ Petition No. 1562 of 1981: All India State Bank of Bikaner and Jaipur Officers Association v. State Bank of Bikaner and Jaipur and Ors. are taken into consideration:

This is a writ petition filed by the All India State Bank of Bikaner and Jaipur Officers Association. By this writ petition, it has been prayed that the Select List Annex. 2 dated 12.6.1987 may be declared to be invalid and maybe quashed. It has further been prayed that the promotion policy Annex. 1 may also be declared invalid and be quashed and consequently it has been prayed that a direction may be given that all the eligible candidates maybe considered by the Selection Committee and a fresh list may be prepared and thereafter the appointments shall follow in accordance with law.

The petitioner is an Association of the Officers of the State Bank of Bikaner and Jaipur. It is a Trade Union registered under the Indian Trade Union Act bearing Registration No. 2/86. It has as its members a large number of officers of the State Bank of Bikaner and Jaipur. It is alleged that the petitioner is a registered body and interested in seeing that the affairs of the Bank are legally and fairly conducted and that injustice is not done to its members. Therefore, this Association has filed the present writ petition projecting the grievances of its members. It is alleged that selection for filling up the posts of Middle Management Grade Scale III from amongst the Middle Management Grade Scale II Officers was undertaken and in this process a Selection Committee was constituted as per Promotion Policy specified in Circular dated 24.11.1984, a copy where of has been placed on the record as Annex. 1. This policy lays down that the performance appraisal reports of all the officers of last 5 years shall be looked into and the candidates would also be invited for interviews and thereafter the selection will follow from 4th to 26th May, 1987. The selection committee consisted of Sarva Shri G.K. Mehrotra, General Manager, G.K.Purohit, General Manager and S.L. Golecha, Assistant General Manager this committee interviewed about 650 candidates and prepared a select list of the candidates who were found suitable for promotion to the Middle Management Grade Scale III. They were to place on probation with effect from 1.8.1985 for a period of one year. This was issued on 12.6.1987. This list has been placed on the record as Annex. 2. This list contained the names of 235 candidates. The seniority list of the officers of the Middle Management Grade Scale II as on 1.1.1986 was. published by the Bank. It is not necessary to go into further details but suffice it to say that the challenge of the petitioner is with regard to the selection of officers from Middle Management Grade Scale II to Middle Management Grade Scale HI. The grievance of the petitioner is that the Policy Annex. 1 dated 24.11.1984 does not contain any criteria. It is vague, arbitrary and suffers from lack of any guidelines. In that connection, learned Counsel has invited my attention to Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , Senior Supdt. of Post Office and Ors. v. Izhar Hussain (Judgments Today 1989 3 SC 411 , Laxmi Narain Mathur Vs. High Court of Judicature for Rajasthan and Another, State of Maharashtra Vs. Mrs. Kamal Sukumar Durgule and Others, ; A.N. Parasuraman Etc. Vs. State of Tamil Nadu, . Learned Counsel also submitted that the policy is also invalid as it suffers from vagueness and in that connection learned Counsel has invited my attention to General Officer Commanding-in-Chief and Another Vs. Dr. Subhash Chandra Yadav and Another, .

Next, learned Counsel submitted that the selections suffer from bias and in that connection, learned Counsel submitted that one of the members of the Selection Committee was Mr. S.L.Gulecha and his own sister''s son was a candidate for selection i.e. Shri N.C. Surana and Mr. Gulecha notwithstanding his relation with Shri Surana participated in the selection. Therefore, the whole of the selection stands vitiated. In this connection, learned Counsel has invited my attention to A.K. Kraipak and Others Vs. Union of India (UOI) and Others, ; Ashok Kumar Yadav and Others Vs. State of Haryana and Others, ; D.K. Khanna Vs. Union of India (UOI) and Others, Surinder Nath Goyal and Ors. v. The State of Punjab through Secretary to Government Punjab, Medical and Health Department, Chandigarh and Ors. 1973 (1) SLR 690; M. Ariffuddin Nizami and Ors. v. D.D. Chitale and Ors. 1973 (2) SLR 119 ; and Vikram Singh and another Vs. The Subordinate Services Selection Board, Haryana and others, .

Learned Counsel submitted that constitution of the Selection Committee is also bad for the reasons that no member from Scheduled Caste/Scheduled Tribes was coopted as the same was required by virtue of the promotion policy. Therefore, the Selection Committee was not properly constituted and the whole selection should be quashed. Learned Counsel submitted that the persons who retired after 1.8.1985 were not considered as the Selection Committee was considering the cases of the persons who were there on 1.8.1985. Learned Counsel submitted that if these persons have been considered then the entire select list would have changed.

Learned Counsel submitted that the judgment of the Division Bench affirmed by the Hon''ble Supreme Court has not been implemented and if it is implemented then the whole selection shall stand vitiated.

Mr. Mridul, learned Counsel has also submitted that some persons with outstanding record have not been selected and some with adverse record has been selected. In this connection, he submitted that out of 235 persons selected there were 32 persons who were senior with better qualifications have been overlooked. Learned Counsel submitted that this kind of process is wholly arbitrary.

Learned Counsel has next submitted that it is not known whether in the selection process any marking was done, whether the whole selection has been made on the basis of Annual Confidential Reports (for short A.C.Rs.) or on the basis of interview or how much of marks were given for the interview and how much of marks were given for the interview and how much of marks were given for A.C.Rs. Learned Counsel submitted that it is accepted by series of decisions of their Lordships of the Supreme Court that more than 121/2% marks should not be assigned to interview.

Mr. Vyas, learned Counsel for the respondent Bank and Mr. N.P.Gupta, learned Counsel appearing for the private respondents have raised a preliminary objection regarding maintainability of the writ petition. Mr. Vyas, learned Counsel for the respondent Bank submitted that this writ petition on behalf of the Association is not maintainable as the person who have been effected by the selection should have approached this Court and this Court should not entertain this kind of the writ petition on behalf of the Association as it is an individual cause. Learned Counsel submitted that individual''s rights can be enforced under Article 226 of the Constitution and for that the individual should bring his grievance instead of the Association and in that connection learned Counsel has invited my attention to The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, ; Sand Carrier''s Owner''s Union and others Vs. Board of Trustees for the Port of Calcutta and others, ; Government Press Employees'' Association Bangalore v. Government of Mysore AIR 1962 Mysore 25; Radha Shyam Datta and Others Vs. Patna Municipal Corporation, ; and Kathiawar Industries Limited Vs. Custodian General of Evacuee Property, Government of India, Ministry of Rehabilitation and Another, Next, learned Counsel submitted that no list has been submitted by the petitioner as to who are the members of the Association nor any aims and objects of the Association have been produced on the record nor the petitioner has filed any authorisation that the Association has resolved and authorised its Secretary to file the present writ petition. It is further submitted that some of the members of the Association are respondents in the writ petition. Therefore, the learned Counsel submitted that this writ petition on behalf of the Association is not maintainable. Learned Counsel also submitted that any person who has not been selected can file an appeal as per the policy laid down in Annex. 1 at item No. (iv) whereby an appellate authority has been created and it has been provided that any person aggrieved by the non-selection can file an appeal within 30 days from the notification of the result. Therefore, any candidate who is not selected has a right to file an appeal. Learned Counsel submitted that this writ petition suffers from acquiescence also as the petitioner''s members have participated in the selection and when they have not been selected, therefore, they have challenged that the Selection Committee was not properly constituted or the selection procedure suffers from bias, vagueness etc. Learned Counsel submitted that the petitioner is estopped from challenging this and in that connection learned Counsel has invited my attention to Pannalal Binjraj Vs. Union of india (UOI),

In order to examine the various submissions raised by the learned Counsel, 1 will take up all these objections in detail in seriatim.

Before I proceed to consider the matter on merits, it is necessary to dispose of the preliminary objection of Mr. Vyas as they are going to have a very strong bearing on the merits of the case. One of the principal submission of Mr. Vyas was that the writ petition was not maintainable on behalf of the Association. It is true that under Article 226 of the Constitution of India it is the person whose individual grievance can be brought forward and the same can be redressed by appropriate writ, order or direction. But there is no prohibition for a Association to bring a writ petition on behalf of the Association espousing the common cause of members of Association. In the present case, the writ petition has been filed by the Association challenging the common cause that promotion policy is bad. There is nothing wrong with such kind of petition as it espouses the common cause of all the members. The Division Bench of this Court vide its order dated 9.9.1987 has disposed of this objection, which reads as under:

Heard learned Counsel for the parties on the preliminary objections raised on behalf of the caveator bank. One of the preliminary objections has already been met and the parties have been impleaded. So far as the rest of the objections are concerned we find no force in them. The petitioner Association is a registered trade union representing the cause of its members. That apart, so far as the present matter is concerned, the promotion policy is under challenge and on that basis the selection list is being sought to be quashed. As the policy itself is under challenge, the question of filing of appeal does not arise. Only aggrieved persons who have been rejected may prefer an appeal in accordance with Annx. 1 but it is the trade union which is before us as the petitioner challenging the promotion policy. Thus we find no merit in the preliminary objections. After hearing the learned Counsel for the parties, we find it a fit case for admission. Learned Counsel for the petitioner states at the bar that one writ petition challenging the policy has already been admitted at the Jaipur Bench in C.W.No. 1571/87 N.R.Ghosh v. State Bank of Bikaner and Jaipur.

Admit. Issue notice to the respondents other than the respondents No. 1 to 5.

Sd/. M.C.Jain, J.

Sd/. S.M. Jain, J.

Therefore, no useful purpose would be served by dealing with the objections of Mr. Vyas regarding maintainability of this writ petition as the objection of Mr. Vyas has been disposed of by the Division Bench and overruled the objection on the ground that since the petition has been filed by a trade union for challenging the promotion policy, therefore, the writ petition is maintainable and accordingly they have admitted the writ petition. In this back-ground it will not be proper for me to sit over the decision of the Division Bench. Once the respondent Bank has been heard on this question regarding maintainability of the writ petition by the Association and the same has been overruled, therefore, nothing turns on this question/preliminary objection of Mr. Vyas that the writ petition is not maintainable by the Association.

Meanwhile a new development has taken place that apart from the Association, some more non-selected candidates have also been impleaded as petitioners in this writ petition. Therefore, on this ground also the objection of Mr. Vyas cannot be sustained. On 14.9.1989 the application of the non-selected candidates Sarva Shri K.N.Bohra, J.N. Vyas, S.L. Kamra and K.K. Sharma was allowed and they were impleaded as petitioners along with the Association. Therefore, in this view of the matter, it cannot be said that individual persons have not come seeking redressal of their grievances. The remaining objections of Mr. Vyas will be dealt with at appropriate places since I have found that the writ petition is maintainable on behalf of the Association and 4 of the non-selected candidates. Therefore, I shall now proceed to examine the challenge of Mr. Mridul regarding the validity of the promotion policy. The policy of the Bank for fitment of Middle Management Grade Scale II Officers to Middle Management. Grade Scale III dated 24.11.1984 has been placed on the record as Annex. 1. The eligibility under the policy reads as under:

(i) Eligibility:

Subject to satisfactory completion of line assignment for a minimum period of two years, all confirmed MMGS-II officers as on 31.12.1981 who have completed both parts of CAIIB examination would be considered for fitment. However, the stipulation regarding line assignment as also CAIIB examination be relaxed for the year 1984 and 1985 in the absence of adequate prior notice to the concerned officers and to avoid administrative inconvenience, subject to the stipulation that atleast one years line assignment before or immediately after selection shall be necessary.

This eligibility criteria was further amended and instead of considering all the confirmed officers of Middle Management Grade Scale II as on 31.12.1981 it was amended and in that place it was substituted that it should consider all officers promoted as Middle Management Grade Scale II upto 1.8.1984 by the letter dated l8.4.1987, a copy whereof has been placed on the record as Annex. R. 2. This was done with the agreement of the Association of the Bank Officers, which reads as under:

The Manager,

Personnel Administration,

State Bank of Bikaner and Jaipur,

Jaipur.

Dear Sir,

Promotions From MM II to MM III And From MM III to MM IV

With reference to your letter No. P/43/Per/263 dated the 8th January, 1987 and discussions on the subject we agreed to the Bank''s suggestion for relaxing the eligibility criteria to include the officers promoted upto 1.8.1984 for the above promotions to comply with the Government guidelines of calling 3 to 4 times candidates of the number of posts to be filled-in by promotions

Yours faithfully,

Sd/-Secretary.

The process of selection has been laid down in the promotion policy which reads as under:

(ii) An initial step the performance appraisal of all eligible officers will be done by a Committee consisting of two General Managers and an Assistant General Manager, on the existing promotion and appraisal forms on the basis of the past 5 years'' confidential reports as also the achievements of the officers in various key responsibility areas pertinent to the assignments held by them.

As a next step the same ''Committee'' will interview all the eligible officers. For the purpose of interviewing the officer belonging to SC/ST communities, an officer in the Senior Management Grade belonging to these communities, or the non-official Director on Board of the Bank representing the interests of these communities if no such officer is available, may be co-opted in lieu of the Asstt. General Manager in the Interviewing Committee.

As the final step the Committee on the basis of the combined rating given for performance appraisal and the performance at the interview will make final selection of officers and recommend to the competent authority, i.e. the Managing Director, the names of officials considered suitable for fitment equivalent to the number of vacancies in MMGS-III in the order of merit.

Then, there is a provision for appeal, which has been given in Clause (iv) under the heading Appellate Procedure, which reads as under:

(iv) Appellate Procedure:

The officials who are not selected may prefer an appeal against their non-selection within 30 days from the date of notification of results. The appeals thus received by the Bank will be put up to the Executive Committee for such orders as it deems fit.

The submission of the learned Counsel for the petitioner was that there is no procedure laid down in Annex. 1 as to how much of marks have been allotted to the performance appraisal reports of each candidate and how much of marks have been allotted to interviews. The selection has taken place as per the Policy Annex. 1 on the basis of the performance appraisal reports as well as the interview of the candidate. But it has not been pointed out that while selecting the candidates how much of weightage should be given to the performance appraisal reports and how much of weight age should be given to the interview. Learned Counsel submitted that on account of this vagueness arbitrariness is apparent and it is not known as to how the selections have taken place. Learned Counsel submitted that whether the selection is on the basis of seniority alone or on the basis of merit alone. According to the process of selection it appears that person''s last 5 years performance appraisal reports will be seen for assessing his achievements in various fields and after interviewing him a final list shall be prepared. But it is not known whether this process of selection is by way of merit or by way of seniority cum merit.

I think the submission of Mr. Mridul is right that from the process of selection it is not known that selection of these candidates from Middle Management Grade Scale II to Middle Management Grade Scale III is made on the basis of merit or seniority-cum-merit and on this the process of selection is silent nor it is known from this process of selection as to whether how many marks have been assigned for performance appraisal reports and how much marks have been allotted for interview. Wherever the selection process involves interview and record, then it is always desirable that the Committee should normally assign marks to the Annual Confidential Reports and to the interview. This could enable the courts to assess whether the selection is fair and objective. A specific argument was raised by the petitioner in the writ petition that the promotion policy is vague and every thing has been left to the sweet will of the selection committee. This argument has been raised in para Dl of the writ petition and the reply to this para is that no foundation has been laid down by the petitioner for challenging the promotion policy. The only objection raised is that this policy cannot be challenged because the State Bank of India is necessary party and the same has not been impleaded. This is no answer to the argument of Mr. Mridul. In this connection Mr. Mridul has referred to a number of decisions. In Vikram Singh''s case (supra), it has been laid down that interview marks should not exceed more than 12.2%. It was a case with regard to selection to the Subordinate Services by the Selection Board for Excise Inspectors in Haryana. There, 28% marks were kept for viva voce and it was held to be in violation of the law laid down in Ashok Kumar Yadav case (supra). It was observed as under:

Selection and recruitment of Excise Inspectors in Haryana-28% marks kept for viva voce-Held contrary to the principle laid down in 1985 SCR 657-Viva voce marks not exceed 12.2%-Haryana Excise and Taxation Inspectorate (State Service, Class III) Rules, 1969.

The Mohinder Sain Garg Ors. Vs. State of Punjab and Others, was also for selection to Excise and Taxation Inspectors in Punjab. Their Lordships of the Supreme Court held that viva voce marks should not be more than 15% for public employment by direct recruitment for candidates fresh from college/school.

In Delhi Transport Corporation (supra) the question was regarding termination of the employees of the Delhi Transport Corporation and there was a provision i.e. Regulation 9(b) which confers authority to terminate the services of a permanent and confirmed employee by issuing a notice without assigning any reason in the order and without giving an opportunity of hearing to the employee before passing the impugned order. This was held to be arbitrary, uncanalised, unreasonable and violative of the principles of natural justice as well as Article 14 of the Constitution of India.

In A.N.Parasuraman (supra) the provision of T.N. Private Educational Institutions (Regulation) Act, were challenged and in that case it was found that since the Act does not lay down any guidelines for the exercise of the power by the delegated authority and it leaves everything to the whims, therefore, some of the provisions were struck down and it was observed as under:

The Act does not lay down any guideline for the exercise of the power by the delegated authority, as a result of which the authority is in a position to act according to his whims and is thus discriminatory and arbitrary.

Sections 2(2)(c), 6, 7, 22 are invalid. These provisions are inextricably bound up with the other parts of the Act so as to form part, of a single scheme, and it is not possible to sever the other parts of the Act and save them. In the result, the entire Act is ultra vires.

In Senior Supdt. of Post Office (supra), under the Liberalised Pension Rules, 1950 there was a Rule 2(2) which gave a power to the Government to retire compulsory a Government servant who had completed 30 years of qualifying service. But no safe-guards were provided under the Rules and unguided discretion was given to the authority. It was held that the unguided discretion is capable of being used arbitrarily. Therefore, the rule was held to be violative. It was observed as under:

Rule 2(2)-Power to retire compulsorily a Government servant who has completed 30 years of qualifying service-No safe-guards provided in the Rule-Un-guided discretion capable of being used arbitrarily-Rules 2(2) held ultra vires Articles 14 and 16-F.R. 56(j)-Constitution of India, 1950, Articles 14 and 16.

It was further observed that no amount of executive instructions can modify or amend the statutory rule. A valid rule can be supplemented by the executive instructions but a statutory rule which is constitutionally invalid cannot be validated with the support of the executive instructions.

In Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, , the question was regarding enforcement of the contracts which are unfair and unreasonable. It was observed that inequality of bargaining power is the result of great disparity in the economic strength of the contracting parties.

From the survey of all these cases, it is established that it is undisputed and untenable proposition of law that the selection should be on the basis of some guidelines which are not vague nor arbitrary nor left the selection to the whims of the selection committee. In the present case, from the averments in the writ petition and the reply thereto it appears that only a guideline has been given, namely, that five years of A.C.Rs. should be seen and after interviewing the candidate the selection should be made. These two guidelines are not sufficient to check the arbitrariness of the selecting body as it has not been mentioned that the selecting body should consider the candidature of the candidates in what manner. This discretion has been left to the selecting body. But the selecting body should have evolved some method as to in what way the selection has to be made. There is no specific guideline given in the policy, but mere eligibility has been given and it has been mentioned that the selecting body shall consider the candidature of those who are eligible on the basis of last five years A.C.Rs. and after interviewing such of the candidates. But it is not spelt out as to how much weightage is to be given to the interview and how much weightage to be given to the A.C.Rs. The policy to this extent is absolutely silent. More-so, when the matter was last heard I directed Mr. Vyas to specify as to what method has been evolved by the selecting body, whether they have fixed any marks for the A.C.Rs. or how much weightage has been given to the interview as his reply is silent on this aspect. Mr. Vyas after seeking instructions from the Bank informed the court that the respondents are not inclined to produce any record to clarify this aspect of the matter. Therefore, in the absence of the material it is not known that in what manner the selections have been made. The only objection which has been taken on this count by the respondent Bank is that the validity of the policy cannot be gone into as the State Bank of India is not a party to the writ petition. This will not suffice because a broad policy has been given by the State Bank of India. Nonetheless a Circular has been issued by the State Bank of Bikaner and Jaipur and the State Bank of Bikaner and Jaipur is a party before me. As a matter of fact, this policy as per the reply given by the Bank to para Dl to the writ petition, it is the Board or the Executive Committee of the State Bank of Bikaner and Jaipur has framed the guidelines in the light of the guidelines issued by the State Bank of India. Therefore, it is not necessary to implead the State Bank of India for examining the validity of Annex. 1. Since I have found that the policy Annex. 1 is vague as it does not provide as to how much of marks is to be assigned for A.C.Rs. and how much marks is to be assigned to the interview. This confers uncanalised power on the Committee. The Committee is in a position to act according to its whims therefore such policy is discriminatory and arbitrary. As the law has been laid down by a series of judgments by the Hon''ble Supreme Court that wherever the selection takes place then the marks of interview shall not exceed 12 to 15% and wherever it has exceeded, the Hon''ble Supreme Court has struck down the selection. Similarly in cases of selection by way of promotion, same broad principle can be made applicable, where the selection involves interview as well as scrutiny of the A.C.Rs., then in that case also the principle should be that the marks should be apportioned as to how much marks should be given for the A.C.Rs. and how much of marks is to be given for the interview. But in any case the ratio of 12 to 15% should not exceed for the interview. In the present case as already mentioned above, from the process of selection, it is not known that as to how much of marks have been assigned for the A.C.Rs. and how much of marks have been given for the interview. Ought we know the whole selection might have been based purely on the interview. The policy of the bank to hold back the record and not to divulge the correct facts gives an impression that the selection suffers from arbitrariness and, therefore, the record has been deliberately withheld by the respondent Bank from this Court. Be that as it may, it is apparent that in the promotion policy Annex. 1 no guidelines whatsoever have been given as to how much of marks have to be assigned for the five years A.C.Rs. and now much of marks are to be assigned to the interview. Therefore, in view of the ratio laid down by their Lordships of the Supreme Court by various decision, it is apparent that the procedure of selection given in the promotion policy suffers from vagueness and it gives totally arbitrary power in the hands of the selection committee and conferment of such arbitrary power is violative of Articles 14 and 16 of the Constitution of India and the same deserves to be struck down. Since the Annex. 1 Policy for promotion contains other conditions like eligibility and appeal etc. which are not challenged before me and the only challenge is regarding procedure of selection therefore I struck down the Clause (ii) of the promotion policy contained in Annex. 1 for the reasons mentioned above.

Mr. Mridul, learned Counsel for the petitioner has also argued that Shri Gulecha was also one of the members of the Selection Committee along with other members and his own sister''s son appeared before the same selection committee. Therefore, the whole selection stands vitiated. I need not to go into this question and other questions, which have been agitated before me. Since I have found the clause(ii) of the Promotion policy Annex. 1 dated 24.11.1984 suffers from the vice of arbitrariness and confers uncanalised powers on the selection committee without giving any guidelines, therefore, I need not to go into the other questions.

This also disposes of the preliminary objection of Mr. Vyas that the petitioner having appeared before the selection committee cannot turn back and challenge its constitution on the basis of principle of estoppel. Since I found that the selection procedure contains in Clause (ii) of the promotion policy itself suffers from vice of arbitrariness being violative of Articles 14 and 16 of the Constitution of India and the same has been struck down. Therefore, this preliminary objection of Mr. Vyas has no legs to stand.

In the result, I hold that Clause (ii) of the Promotion Policy Annex. 1 is arbitrary, vague and confers uncanalised powers on the selection committee. Therefore, it is violative of Articles 14 and 16 of the Constitution of India and it is struck down and consequently all selections made thereunder.

The writ petition is, therefore, allowed.

In the subsequent two writ petitions i.e. All India State Bank of Bikaner and Jaipur Officers Association v. State Bank of Bikaner and Jaipur (S.B.Civil Writ Petition No. 3964/88) and All India State Bank of Bikaner and Jaipur Officers Association v. State Bank of Bikaner and Jaipur (S.B.Civil Writ Petition No. 2293/89) also, the selections have been challenged on the basis of same reasoning as given in the former writ petition. Therefore, both these writ petitions are also allowed in the light of the aforesaid discussions.