Bhal Chandra Upadhyaya vs Madhya Pradesh Financial Corporation and Another

S.K. Chawla, J.

This is writ petition in a service matter.

The petitioner is Assistant Branch Manager in Madhya Pradesh Financial Corporation which is impleaded as respondent No. 1 in this petition. The petitioner started his service in the Corporation as Upper Division Clerk in the year 1974. In April, 1975 i.e. within about one year, he was promoted as Assistant Branch Manager. It will, thus, appear that for a long period of 17 years since then, he is stagnating in the post of Assistant Branch Manager. During this period he was suspended on certain charges on 20-11 -1982 and was ultimately dismissed from service on 11-11-1983. But the order of dismissal was quashed by this Court by order dated 28-1-1985 in M. P. No. 2670/83 (Annexure-A). While quashing that order, this Court also directed that the petitioner shall be deemed to be continuing in service and shall be entitled to pay and allowances as if the said order of dismissal had not been passed. Accordingly, the Corporation reinstated the petitioner as Assistant Branch Manager by order dated 13-3-1985 (Annexure-B).

The first occasion for consideration for promotion to the post of Branch Manager/Assistant Secretary came in the case of the petitioner when Selection Committee of the Corporation held its meeting on 23/24-9-1982 (Annexure R 9). The Selection Committee at that time proposed eight persons for promoton as Branch Manager/Assistant Secretaries excluding the petitioner, who was considered not fit. Of the eight persons proposed for promotion, as many as six were junior to the petitioner. The recommendations of the Selection Committee for the aforesaid promotions were approved by the Board of Directors of the Corporation on 11th October, 1982 (Annexure R-10). The second occasion for consideration again came on 9th and 17th February, 1987 when the Selection Committee held its meetings on those dates. At that time the Selection Committee also fixed the criteria/norms for considering cases of promotion. One of the norms decided was that CRs. of the employees for the past 5 years would be considered. It was also decided that evaluation of CRs. would be done by awarding marks and only those employees securing at least 10 marks or more out of 25, would be called for interview. 10 marks were assigned for interview (Annexure R-11). On evaluation of CRs. the petitioner allegedly secured less than 10 marks and was accordingly not called for interview, much less selected for promotion. In other words, he was again superseded. The Selection Committee after taking interviews on 6-5-1987 proposed six employees for promotion to the posts of Branch Managers/Assistant Secretaries, who were all juniors to the petitioner (Annexure R-14). The Board of Directors approved of those proposals on 14-5-1987 (Annexure R-15).

The case of the petitioner is that his supersession on the first occasion was done on the ground of adverse remarks in his confidential report, as is evident from the letter of the Corporation, Annexure F. Those remarks related to 3 years; namely, 1977-78, 1978-79 and 1979-80. Those remarks have been exhibited by the Corporation as R-5, R-6, 6 and R-7. On the case of the petitioner, the remarks for all these three years were communicated to him on a single date i.e. 10-2-1982. This is also an admitted position. A mere lookat R-5, R-6 andR-7 confirms this position, for all those letters communicating adverse remarks for the various years are all dated 10-2-1982. The case of the petitioner is that sending of adverse remarks for the various years to him belatedly, and more so, on a single date, showed mala fide intention of the Corporation. The petitioner had also sent a representation against those remarks on 22-3-1982 (Document No. 1). He heard nothing against his representation. In other words, his representation remained undisposed, of. In those circumstances, those alleged adverse CRs. could not have been considered by the Selection Commitree in its meeting dated 23/24-9-1982 to deny him promotional opportunity.

The case of the petitioner further is that even on the second occasion for consideration for promotion in the year 1987, evaluation of his CRs. was not done properly for placements before the Selection Committee because he had never been communicated any adverse remarks during that period of 5 years, including the period of his suspension falling during that spell. Even for the period of his suspension he deserved to be given, on account of his reinstatement, average weightage for calculation of marks.

The further case of the petitioner is that he is also entitled to special pay for the years 1982-83, 1983-84 and 1984-85. This is the period when the petitioner could not work in his job because of suspension and subsequent dismissal which was quashed by the order of the High Court. It is contended on behalf of the petitioner that since the High Court, while quashing the dismissal, directed that the petitioner shall be deemed to be continuing in service and shall be entitled to pay and allowances as if the said order of dismissal had not been passed, he was entitled to special pay like other additions to the pay for the said three years.

Now taking into consideration the first occasion when promotion was denied to the petitioner in the year 1982, we must categorically say that we do not approve of the action of the Corporation in communicating to the petitioner adverse confidential remarks of previous three years belatedly and on a single date. The purpose behind communicating adverse confidential remarks to an employee is that he should get an opportunity to improve his work and conduct. It is also to give him an opportunity to explain circumstances leading to the adverse remarks. Timely communication of adverse CRs. also enables superior authorities to decide, on a consideration of the explanation offered by the employee concerned, whether the adverse remarks were justified. The Corporation has tried to explain in its additional return that there was no mala fide intention in communicating the adverse remarks belatedly. According to the Corporation, it was found that adverse remarks had not been communicated to many employees, including the petitioner. The adverse remarks were, therefore, communicated to all those employees including the petitioner, since it was necessary to do so in view of the fact that promotions were likely to be considered in near furture. This makes a sorry reading about the state of affairs which were prevalent in the Corporation at that time.

At the same time, it is difficult for us to accept the version of the petitioner that he had made any representation against adverse remarks of those three years. The Corporation on its part vehemently denied that the petitioner had sent any representation. The Corporation filed affidavits of its Secretary (Administration) and of the P.A. to the Managing Director to state that no representation from the petitioner was received in the office. A look at the alleged representation (Document No. 1) shows that it bears the stamp "Registered A.D.". This means that the alleged representation was sent by registered post with acknowledgment due. The acknowledgments were however, not filed by the petitioner. Postal receipts are no doubt filed but the postal date seals on them are so illegible that it is difficult to decipher the date. It is, therefore, difficult to say if those postal receipts really pertain to the alleged representation, if at all it was made. The position, therefore, comes to this, that it is not possible to accept the version of the petitioner that he had made any representation against adverse CRs. of the years 1977-78, 1978-79 and 1979-80 (i.e. R-5, R-6 and R-7). No exception can, therefore, be taken if those adverse CRs. were considered by the Selection Committee to deny promotion to the petitioner in its meeting dated 23/24-9-1982, particularly when those adverse CRs. had already been communicated to the petitioner as much as seven months back and no representation had been received against them. There was, therefore, no infirmity in the decision of the Selection Committee for not promoting the petitioner on the first occasion.

Coming to the second occasion when promotion was denied to the petitioner in the year 1987, the evaluation report (R 13) which was placed before the Selection Committee, shows that the performance of the petitioner for the last five years, leaving aside the period when he could not work due to his suspension, was throughout poor. He was given one mark signifying his category as poor in three of the five years i.e. in the years 1981-82, 1984-85 and 198586. In the remaining two years, i.e. in the year 1982-83 when be could only partly work because of his suspension taking place in the midst of that year, he was given 0.75 marks while in the year 1983-84, when he did not work throughout because of his suspension followed by termination, he was given no mark at all but the words "under suspension" were written. It can justly be argued on behalf of the petitioner that for the year 1983-84, insted of giving him no mark at all, he should have been given average weightage in accordance with the guidelines, R-11. Even if that average were given the fact remains that total marks secured by the petitioner for the relevant five years were meagre 3.75 marks, which could not have got appreciably increased even if average weightage were given. The marks could in no case have reached the minimum level of 10, which was necessary to entitle the petitioner to a call for interview for promotion.

It is also true that of the five years under consideration, the adverse confidential remarks for the last year i.e. of the year 1985-86 were communicated to the petitioner, on the showing of the Corporation itself, on 9-4-1987, vide Annexure R-16. The meeting of Selection Committee, it may be recalled, had already taken place on 9th and 17th February, 1987, vide Annexure R-11, when evaluation report based on C.Rs. for the last five years must have been placed before the Selection Committee and scrutinised by it to consider the matter about promotion. It is a different matter that the Selection Committee on a subsequent date i.e. 6-5-1987 held another meeting, when those having secured 10 marks and above, were interviewed for promotion. The consideration of the Committee in its meeting dated 9th and 17th February, 1987, videR-11, can be said to have been partly vitiated for taking into consideration against the petitioner an uncommunicated adverse remark of the last of the five years i.e. of the year 1985-86. The communication of the remarks of this year was admittedly done by the Corporation after that event, which could be of no avail. But we are of the opinion that in the particular circumstances of the present case, even that infirmity had no material effect. It is not the case of the petitioner that he made any kind of representation against adverse C.R. of the year 1985-86. Even if, therefore, we were to direct that a review Selection Committee be convened to reconsider the case of the petitioner for promotion as in the year 1987, it would be open to the review committee to consider even that C.R. of the year 1985-86 against which the petitioner has made no kind of representation. The result will, therefore, be the same and even if, the Review Committee were directed to reconsider the case of the petitioner ignoring that C.R., the result would not be any different, for we find that the petitioner had throughout a lacklustre and poor record right from the year 1979, without any spells of improvement. The exercise for reconsideration by review Selection Committee would, therefore, be meaningless. In these circumstances we are clearly of the opinion that it would be futile to direct reconsideration of the case of the petitioner for promotion at the second occasion i.e. in the month of February, 1987, apart from the fact that the petitioner has not specifically challenged the decision whereby he was superseded and others were promoted on the second occasion, to which reference will be made in the sequel.

In our opinion, the petitioner cannot also justly lay a claim for special pay. It appears that special pay is fixed by the Corporation each year. It was two months'' basic pay in the year 1981-82 vote Annexure R-1. It was 2 1/2 months'' basic pay for employees of B and C category for the year 1982-83 vide Annexure R-2. Similar is the case with respect to other different years. It appears from a perusal of different orders for grant of special pay, R1 to R-4, that special pay is given by the Corporation to its employees as appreciation of good work. It is purely discretionary and does not form a precedent for the future and does not necessarily accrue to every employee as a matter of course of right. The petitioner; it may be noted, did not actually work during the three years in question i.e. in the years 1982-83, 1983-84 and 1984-85. No doubt, he was entitled to get all pay and allowances during this period by virtue of the order of this Court dated 28-1-1985 (Annexure-A). But special pay being ex gratia payment and entirely discretionary could not be said to be "allowances" atteched to the pay. Even if, an employee had actually worked, and not merely deemed to have worked because of an order of the Court, he might not be given special pay by the Corporation. It was incentive for good work. It could not, therefore, be said that the Corporation was wrong if it refused to give special pay and rejected the petitioner''s claim to it for the three years in question, vide letter, Annexure-C.

Before concluding, it will not be out of place to mention that the present writ petition was not properly constituted. No challenge was made to orders whereby the petitioner was superseded and others promoted on both the occasions. If that challenge were made, as it should have, it would have been further necessary to implead all those employees as respondents who shall be effected or displaced from their existing position if the petitioner''s claim for promotion were allowed. In other words, it would have been necessary to implead all those employees who were junior to the petitioner but got promotions on the two occasions. A reference to paragraph 3 of this order would show that as many as six employees junior to the petitioner were promoted on the first occasion and an equal number of juniors were promoted on the second occasion. In a word, it would have been necessary to implead at least 12 employees as respondents in this petition, which was not done. The defect of non-joinder of those employees could not be ingeniously got over by trying to confine the challenge, as appears to have been done in this case, to just information, annexure F, from the Corporation to the petitioner that his claim for seniority had been rejected due to adverse remarks in his C.R. Such information, even if quashed, will not help the petitioner unless the orders of promotion were themselves challenged and quashed.

For the foregoing reasons, the present writ petition deserves to be and is dismissed. No order as to costs. Security amount, if outstanding, be refunded to the petitioner.