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Judgment
For the appellant Anil Bhandari it is a case of operation
successful patient dead. Agreeing with the view propounded by him in S.B.Civil Writ Petition No.2613/1991 as also S.B.Civil Writ
Petition No.4156/1997, vide common judgment dated 30 th March,
2017, the writ petitions have been dismissed.
This explains Anil Bhandari having filed two appeals. In so
far as the learned Single Judge having agreed with the contentions
advanced by Anil Bhandari, the United India Insurance Company
Limited has filed the other two captioned appeals.
Relevant facts qua S.B.Civil Writ Petition No.2613/1991 are
that there existed a promotion policy as per which Senior
Assistants became entitled to be promoted as Assistant
Administrative Officers. Promotions could be made for those
candidates who were eligible as per para 30 of the promotion
policy as also para 31 thereof. The case of Anil Bhandari was for
being considered to be promoted under Clause-30. Of the 30
notified vacancies for the post of Assistant Administrative Officer,
20 were to be filled up as per Clause-30 and 10 as per Clause-31
for the vacancy year 1989. Candidates were informed to appear
before the Interview Committee, which was also the Selection
Committee for the reason apart from seniority, qualifications, work
record; 20 marks had to be assigned at the interview. Clause 14
of the policy required the Committee to comprise three members.
One of the rank of Manager and two of the rank of Dy.Manager. As
per a note appended to Clause-14 of the policy one member had
to be from SC/ST community. As per Anil Bhandari when he
reached the venue of the interview he found that the Interview
Committee comprised four members: T.D.Sundarrajan, A.N.Pawa,
Som Nath Viz and Bal Kishore. Bal Kishore was holding the post of
Assistant Manager. Anil Bhandari refused to participate at the
interview. For the next year (1990) vacancies became available.
Anil Bhandari was called to appear at the interview and was also
informed that he should produce a certificate of membership from
the insurance institute. As per him this condition could not be
made applicable for the vacancies of the year 1990. As was the
grievance for the previous year, Anil Bhandari has a grievance that
the Interview Committee which held interviews on 1.5.1991
comprised four members: Mrs.Meenakshi, E.S.N.Murti, A.D.Gupta
and S.K.Gotwal. The first being of the rank of Manager, the other
Dy.Managers and the third Administrative Officer. He did not
participate in the interview and filed the writ petition praying that
the interviews be held again by constituting proper Committees
and that the United India Insurance Company should not insist for
membership of the insurance institute.
In response to the writ petition justifying the constitution of
the Interview Committee contrary to the mandate of Clause-14 of
the promotion policy reliance was placed upon a circular dated
18.6.1986 which permitted any SC/ST officer to be nominated to
the Committee if of the applicable rank no officer of SC/ST
community was available.
Grievance raised by Anil Bhandari in S.B.Civil Writ Petition
No.4156/1997 pertained to clubbing of the vacancies for the same
post for the years 1994, 1995 and 1996 while conducting the
promotion exercise in the year 1996. He also questioned the
marks awarded to different persons.
Both the writ petitions have been decided by a common
decision dated 30th March, 2017. Findings regarding S.B.Civil Writ
Petition No.2613/1991 are in paras 26 to 30 which reads as
under:
"26. After looking into the record and after examining the contentions, I find that the petitioner''s contention with regard to constitution of the promotion committee being not in consonance with the provisions of the Promotion Policy are correct and the Promotion Committee could not have been formed of four members after new Promotion Policy had been promulgated as revised upto 05.01.1987. It is settled rule of interpretation that if something has been written in the rules/regulations or the policy which governs the field, no words can be added or subtracted from the same. Clause 14 clearly provided that constitution of the Promotion Committee for the promotion to the cadre of Assistant Administrative Officer would consist of an officer not below the rank of Manager to act as Chairman and two other officers not below the rank of Dy. Manager. As per note appended to Clause 14, it was specifically provided that one member of the Promotion Committee shall be an officer from the Personnel Department while one member of the Promotion Committee shall be an officer from the SC/ST Community. Thus, amongst 3 members one member was required to be from SC/ST Community who are obviously be not below the rank of Dy. Manager. However, in the present case, it is an admitted position that the Committee which was formed for making recommendation for the vacancies of 1989 as well as the Committee which was formed for the vacancies for the Year 1990 consisted of 4 members out of which one member was from SC/ST Category but was not holding the rank of Dy. Manager. 27. The contention of the respondent that there was no person available from SC/ST Community of the rank of Dy. Manager is found to be false in view of the names of officers mentioned by the petitioner in the writ petition which was holding the rank of the Dy. Manager at the time when Promotion Committee was formed which has not been denied. No reasons have come forward from the respondents for not including such officers while an officer of rank below i.e. Assistant Manager was included in the Promotion Committee of 1990 and officer of two ranks below post of Dy. Manager was included in the Committee of 1991 belonging to SC/ST Community.
The contention of the respondents is also not acceptable with regard to the Circular dated 18.06.1986. A look at the Circular dated 18.06.1986 provides as under:-
"Where Companies are recruiting AAO Specialist, Interview Committees are constituted by the Companies, but generally no officer below the rank of Manager is nominated. As there is no SC/ST officer at this level in the Industry, Companies may be instructed to nominate in addition to the normal three member Committee, an SC/ST Officer from within the Industry who is in AM''s rank."
However, contention of the petitioner is found to be correct that the said Circular would not apply after the promulgation of the new Promotion Policy revised up to 05.01.1987. In this Promotion Policy as noted above, the requirement of a SC/ST officer has been included in the Clause itself and thus after 1987, the respondents could not have fallen back on the Circular of 18.06.1986 and, therefore, it is apparent that the recommendation made by such a Committee which was not in consonance with the Promotion Policy would not be in accordance with law. 30. The exercise of conducting promotions for the post of 1989 and 1990 a per the then existing Promotion Policy as revised upto 05.01.1987 cannot be said to be strictly in accordance with the Promotion Policy deserves to be accepted."
Findings regarding S.B.Civil Writ Petition No.4156/1997 are
in paragraph 31 which reads as under:-
"31. So far the second Writ Petition is concerned, a look at Clause 15 of the Promotion Policy shows that the Promotional vacancies for the year shall be worked out in the month of January taking into consideration again the previous years performance and the promotion process may be initiated thereafter as to aim of completing promotion process on 30th June of every year. The petitioners contention in this regard deserves to be accepted that there has been a process of clubbing of vacancies. In Vinod Kumar Sangal Vs. Union of India 1995 (4) SCC 246; Supreme Court has held that clubbing of vacancies is improper. Vacancies have to be determined each year and when the Promotion Committee meets it is required to make selections on yearly basis for vacancies of each particular year. This Court too has taken a view in the case of Chhaya Bhatnagar Vs. Union of India & Ors. (DB Civil
Writ Petition No.7472/2013), decided on 02/02/2015. There is a specific averment regarding clubbing of vacancies of the Year 1994, 1995 & 1996 while conducting exercise of promotion in the Year 1996. The respondents have also not been disgraced such a contention. Accordingly, the exercise for promotion for the Years 1994, 1995 & 1996 has to be done on yearly basis and after filling up the posts of the Year 1994, the zone of consideration has to be prepared for the Year 1995 and similarly after filling up the post of 1995, the zone of consideration has to be prepared for Year 1996."
Relevant would it be to highlight that concerning the second
writ petition the learned Single Judge has discussed marks
awarded to different candidates on different parameters in para 17
onwards, but has rendered no definite opinion thereon.
Relief has been denied to Anil Bhandari on the ground that
he had obtained voluntary retirement before the writ petitions
were decided.
With respect to the impugned decision denying relief to Anil
Bhandari on the ground that in view of he having obtained
voluntary retirement no relief could be granted inspite of the merit
found in his case, learned Senior Counsel for Anil Bhadnari urged
that earlier on vide order dated 28.5.2004 writ petition filed in
the year 1991 was disposed as infructuous on account of Anil
Bhandari having taken voluntary retirement. The said order dated
28th May, 2004 was set aside in D.B.Civil Special Appeal (Writ)
No.518/2004 and direction issued was that both writ petitions
would be decided on merits with the observation that if Anil
Bhandari succeeded and interviews were re-held and thereupon he
was empanelled to be promoted as Assistant Administrative
Officer relief could be granted to him passing appropriate
directions.
The argument of learned Senior Counsel for Anil Bhandari
was that on account of Anil Bhandari having taken voluntary
retirement the learned Single Judge could not have denied relief to
him.
Now, when Anil Bhandari took voluntary retirement his claim
in the writ petitions had not crystallized in a vested right. It is
settled law that a Writ Court can take into account subsequent
events which have transpired during the pendency of the writ
petition and mould relief accordingly. In the view taken by the
learned Single Judge in the two writ petitions filed by Anil
Bhandari wherein constitution of interview board was found to be
contrary to the promotion policy and clubbing of vacancies not
permissible in law, relief could certainly be denied to Anil Bhandari
because not only would it be too late in the day to set the clock
back but for a very weighty additional reason which the learned
Single Judge has over looked. The weighty reason is that the
empanelled candidates who were promoted earlier on in the years
1990 and 1991 and subsequently in the year 1996 have not been
impleaded as respondents.
On this ground alone appeals filed by Anil Bhandari have to
dismissed.
As regards the appeals filed by United India Insurance
Company Limited we find that indeed the composition of the
interview boards was contrary to the mandate of the promotion
policy and contrary to the law which prohibits clubbing of
vacancies.
As a consequence thereof all four captioned appeals are
dismissed but without any order as to costs.