H.N. Raghavendra Rao vs Central Bank of India, Bombay

V. Gopala Gowda, J.-The petitioner, who is the Bank Officer of the respondent-Bank has filed this writ petition seeking for issuance of a writ in the nature of mandamus to the respondent-Bank to pay him the pay scales and allowances under the Central Bank of, India (Officers'') Service Regulations, 1979 with effect from 1-2-1984, to declare that the order dated 14-12-1988 as per Annexure-D to the petition and another order dated 4-6-1993, Annexure-L as arbitrary, discriminatory, illegal, void ab initio and unenforceable against the petitioner and to quash the same; to grant consequential benefits including the payment of arrears and also to declare Regulation 12 of the Central Bank of India (Officers*) Service Regulations, 1979 (in short, ''Regulations'') insofar as it denies option to the petitioner to opt the scale of pay and allowances under the Regulation on and from 1-11-1987 as arbitrary, discriminatory, ultra vires, urging various legal contentions.

Certain relevant facts which are necessary for the purpose of considering the rival contentions and answering the same are stated as hereunder.- The respondent-Bank vide circular dated 18-10-1986 called upon its officers to submit option to the pay scale under the amended Regulations of Canara Bank of India (Officers'') Service Regulations, 1979, (hereinafter called ''Regulations'' in short) with retrospective effect from 1-2-1984 under Regulation 12 of the Regulations. As per Clause 4 of the said circular, officers who are eligible to exercise their option in terms of para 3 were required to submit their option letter in duplicate as per Annexure-9 within 30 days from the date of receipt of the circular to the head of the office/branch where they are working. Clause 8.6 of the circular states that the contents of the circular shall be brought to the notice of all officers who are drawing the old pay-scale in the Branch/head office.

It is the case of the petitioner that the said circular has not been either circulated to him or served on him as per the practise prevailed in the respondent-Bank as has been done in the previous occasion at Annexure-A when it had amended the Regulation granting the higher pay scales to its officers, the individual notices like Annexure-A was served upon the beneficiaries-officers calling upon them to give either their option or not to accept the pay scale.

It is further contended by the learned Counsel on behalf of the petitioner that the circular was neither circulated nor served upon the petitioner. Therefore, he has submitted an option form dated 2-11-1988 to the respondent stating that in terms of the officers circular at Annexure-B he has exercised his option in favour of pay scale and allowances applicable to the officers of the respondent-Bank under Regulation on and from 1-2-1984. According to the learned Counsel for the respondent, the said option form was sent along with the covering letter at Annexure-R1, dated 12-11-1988. This contention is disputed by the learned Counsel for the petitioner stating that Annexure-Rl, dated 12-11-1988 is not a covering letter but it is another letter giving explanation and not submitting his option form within 30 days as mentioned in the circular at Annexure-B.

The respondent after considering Annexure-C has issued the letter dated 14-12-1988 to the petitioner refusing to accept the option given by him at Annexures-C and R1 stating that the option was given by him beyond 30 days time as prescribed in the circular and he had exercised the option after two years, therefore, the respondent expressed its inability to accept the request of the petitioner. Thereafter, one more representation was given by the petitioner vide Annexure-E on 30-7-1989 to the respondent for accepting his option for revised pay scale. Annexure-F is another circular dated 10-3-1990 issued further by the respondent-Bank revising the salary of its employees governed by the Regulations. As per the said pay revision there was no option required to be given by its officers. Further, the petitioner has given letter dated 28-11-1990, Annexure-G requesting the respondent stating that the Bank was kind enough to extend the facility conversion into revised scale in the earlier pay revision namely, February 1984 and he had hoped that during the present wage revision with effect from November 1987, his option may be allowed for which the letter dated 11-1-1991 replied by the respondent to the petitioner stating that the officers who are opted for old scales of pay and allowances are not eligible for new scales of pay for the reason that revision of pay scale is effected to the officers of the Bank till they are promoted to the next higher scale. One more representation at Annexure-J, dated 11-1-1993 was submitted by the petitioner requesting the respondent for acceptance of his option form for new scale of pay from 1-2-1984 on and from 1-11-1987. Annexure-K, dated 18-3-1993 giving the statement of basic pay and other allowances drawn by the non-optee officers and optee officers to show that there is a difference of gross salary between them, in pursuant to the revision of pay scale, for which vide Annexure-L the respondent replied to the petitioner vide its letter at Annexure-L in not considering payment of revision to the petitioner for the reasons stated therein. The petitioner is aggrieved of the impugned orders, he has filed this writ petition by urging various legal contentions.

The learned Counsel Mr. P.S. Rajagopal on behalf of the petitioner submits that there is no service of copy of the circular, revision of pay scale of Annexure-B as provided under it. Therefore, there was no deemed service merely because Annexure-B was issued. In support of his submission, he has placed reliance upon the judgment of the Apex Court in the case of Union of India and Others v Dinanath Shantaram Karekar and Others, AIR 1998 SC 2722, with regard, to the deemed service of notice having regard to the contention urged at paragraph 5 of the said judgment of the Apex Court at paragraph 10, it has made certain observation with reference to the facts of that case,

"The theory of "Communication" cannot be invoked and "Actual Service" must be proved and established".

Having regard to the observations made in the said judgment, the same with be applicable to the facts of this case with all fours having regard to the nature of the benefit which has been extended to the officers of the Bank under the Regulations referred to above. Keeping in view that the revision of the pay scales made by the Bank to its employees by amending the Regulation 12 of the Regulations which had conferred fundamental rights upon its officers guaranteed under Articles 14, 16 and 21 of the Constitution of India. Therefore, the service of circular regarding revision pay as contemplated under condition 8.6 of the circular at Annexure-B upon the petitioner/officers calling upon them to submit their option if they are willing to accept the revision of pay is required to be strictly construed, regarding its service upon its officers. Unless the notice of the circular is served upon the officers of the Bank and the same is proved by the Bank it cannot be contended by it that there was deemed service of the circular upon the petitioner/officers and that he has not submitted his option in Form Annexure-9, within 30 days as stipulated therein and therefore he is not entitled for the benefit of revision of pay scale under the Regulation is not tenable in law. Respondent-Bank cannot contend that option form Annexure-9 was not submitted by the petitioner as there was a communication of the circular to the petitioner, which amounts to actual service of notice as contended by the respondent-Bank in the statement of counter cannot be accepted by this Court. Further, the learned Counsel for the petitioner alternatively submits that the prescription of period of limitation of 30 days for submission of option forms by the beneficiary officers including the petitioner in the circular is only directory but not mandatory, for the reason stated supra it is the right conferred upon its officers in pursuant to the revision of pay scale under the Regulations at Annexure-B will confer the fundamental rights as provided under Articles 14 and 16 of the Constitution of India upon its officers if 30 days period of limitation prescribed for submission of option forms is held to be mandatory officers of the Bank would be deprived of the valuable right for which they are legally entitled. Therefore, the learned Counsel on behalf of the petitioner submits that the respondent-Bank should have condoned the delay in submitting option forms having regard to the fact that there was no actual service of circular upon him and further he would submits that this Court vide its order dated 14-11-1995, has directed the petitioner to move an application for condonation of the delay in exercising option and seek for extending new pay scale, subject to the outcome of the writ petition. In pursuant to the liberty given by this Court, he had submitted an application vide Annexure-N, the same has not been considered by the respondent-Bank. This contention is seriously disputed by the learned Counsel appearing on behalf of the respondent by producing letters at Annexures-R2, R3, R4 and R5. It is contended by the learned Counsel Mr. Sawkar on behalf of the respondent-Bank that the payment of revision of pay scale as claimed by the petitioner is also considered, the delay in submitting option form was not acceptable for the Ministry of Finance. Therefore, the Bank has not accepted the option of the petitioner and not extended the benefits of revised pay scale under the Regulations and therefore, the learned Counsel on behalf of the petitioner submits that the reasons assigned at Annexures-R4 and R5, in not considering the application submitted by him at Annexure-N also are not legal and valid and therefore he would submits that the impugned orders are liable to be quashed and the reliefs as prayed in this petition has to be granted.

Mr. Sawkar, learned Counsel appearing on behalf of the respondent submits that the Bank has filed a detailed statement of counter traversing various petition averments particularly he has placed reliance at paragraph 3 which has been specifically contended with reference to the circular at Annexure-B wherein officers were given circular to exercise their option within 30 days. A fitment sheet showing the fitment and recovery, if brought into the new scale of pay, was also circulated to all such officers including the petitioner. However, the petitioner did not choose to exercise the option for fitment into the new scale of pay. Therefore, the petitioner was not deligent in exercising his option. Therefore, the learned Counsel for the respondent submits that the petitioner is not entitled for the reliefs as prayed for in this petition. Further, it is contended by him that option form submitted to the respondent by the petitioner either in the Annexures-C, R1, G, J and K, no explanation has been offered by him regarding the reasons for not submitting the option form within the prescribed time at Annexure-B. Therefore, it is contended by the learned Counsel that the above said facts would go to show that the petitioner had the knowledge of the circular which was circulated by the respondent-Bank to its officers including the petitioner, but he has not submitted option within the prescribed period. In this view of the matter, the learned Counsel on behalf of the respondent would urge that the petitioner is not entitled for any reliefs, much less the reliefs as prayed in this petition.

The learned Counsel on behalf of the respondent would submits that the option form submitted by the petitioner is liable to be rejected, if the prayer sought for in the petition is granted it amounts to opening of a Pandora Box in the Bank as similarly placed officers as that of the petitioner, would come up with the same plea claiming the benefit under the Regulations in that event there will be heavy financial liability upon the Bank, therefore, the learned Counsel for the Bank submits that this important aspect of the matter is required to be considered by this Court at the time of considering the case of the petitioner for grant of the relief as prayed in this petition.

After hearing the learned Counsels for the parties, I have perused the documents produced by both the parties. As per Annexure-B the revision of pay scales to its officers by way of amendment of Regulation 4 of the Regulations was required to be brought to the notice of its officers either circulating the circular or sending individual personal notice to its officers as has been done at an earlier occasion vide Annexure-A when there was earlier revision of pay scale to its officers. No doubt, the petitioner has not stated at Annexure-C that he had no knowledge of the circular but the question required to be examined and considered in this case by this Court having regard to the disputed question of fact namely, that the circular was circulated among the officers of the Bank including the petitioner is the case sought to established contended by the respondent-Bank, therefore it is required to prove this fact by producing the documents. The respondent-Bank has not produced the document to establish the factum of service of circular upon the petitioner. This Court has to record a finding as to whether the claim of the petitioner is legal or otherwise. As per Clause 8.6 of the circular at Annexure-B, the respondent-Bank was required to bring to the notice of the same to its officers. The counter-statement filed by the respondent in this regard at relevant paragraph 3, it is stated that the circular was issued to all the officers including the petitioner, and he had the full knowledge of the fact of the circular Annexure-B. According to the Bank, under Regulation 12 of the Regulations vide circular at Annexure-B, dated 18-10-1986 was issued to all the officers including the petitioner to exercise their option within 30 days from the date of receipt of the circular, expressing their willingness for accepting the revised pay scale as revised under the amended Regulation 12 of the Regulations. It is contended by the learned Counsel for the Bank that a fitment sheet showing the fitment and recovery, of the officers of Bank showing the new scale of revised pay extended to its officers, was also circulated to all such officers including the petitioner, therefore he had the knowledge of circular Annexure-B for having revised the pay scale and he was required to submit his option expressing his willingness for acceptance of the revised pay scale, this contention of the respondent cannot be accepted for the reason that it was required to serve the circular at Annexure-B upon the petitioner, which fact is not established by it. The respondent-Bank was required to produce the document to evidence the fact that there was actual service of the circular at Annexure-B upon the petitioner, the respondent cannot be found fault with the petitioner for not giving his option within the stipulated period of 30 days from the date of knowledge specified in the circular for the revised pay scale as amended under Regulation 12 of 1986. Therefore, the reason given by the respondent at Annexure-D stating that the option form submitted by the petitioner is beyond 30 days as stipulated in the circular is not tenable in law for the reason that the respondent was required to bring the circular at Annexure-B to the notice of the officers of the Bank including the petitioner to facilitate them for giving their options expressing their willingness for acceptance of the revised pay scale under the amended regulations. The rival contentions urged by the learned Counsels on behalf of the parties and the documents produced by them are considered and I am satisfied that the respondent-Bank has not served the circular referred to supra upon the petitioner. Therefore, the reasons assigned at Annexure-C by the respondent-Bank are wholly untenable in law and further this Court on the interim application has passed in order dated 14-11-1995 directing the respondent-Bank for considering the application that would be submitted by the petitioner as per the liberty given in the above said order giving option form by him claiming the revised pay scale as per the circular at Annexure-B. I have perused Annexure-L and also the documents at Annexures-R2 to R4 produced by the Bank. The said application of the petitioner was forwarded to the IBA for its consideration as per the order of this Court referred to supra. The IBA in turn submitted the same to the Finance Department. The Finance Department has stated at Annexure-R4 that the 3 PCR pay scales are already been given to the officers of the Bank after taking the option twice, therefore no further option can be given to them at this stage and therefore the respondent-Bank has not accepted the option form and further it has stated that the application and his option for accepting the revised pay scale is contrary to the object and intentment of revision of the pay scale and the Bank has arbitrarily denied the valuable right accrued in favour of the petitioner as per the amended Regulations referred to supra in revising the pay scale, by giving untenable reasons in the documents at Annexures-D and R4, which is contrary to law, hence the impugned endorsement at Annexures-D and R4 are liable to be quashed.

In my considered view, the representation submitted by the petitioner again giving his option for acceptance of the revised pay scale of 1987, in pursuant to the interim direction of this Court order dated 14-11-1995 has not been properly considered by the respondent-Bank. Keeping in view the intentment and the object and the purpose for which the revision of pay scale has been extended to its officers, which right is in the nature of fundamental rights as guaranteed under the provisions of Articles 14 and 16 of the Constitution of India, as the Regulation 4 of the Regulations has been amended and further either the respondent of the Finance Department of the Union of India has taken into consideration the relevant facts namely as to whether the circular at Annexure-B was brought to the notice of the petitioner as required under Clause 8.6 of the circular for submission of his option form expressing his willingness for accepting the revised pay scale, which is more beneficial to him. Therefore, the reasons assigned at Annexure-R4 by the Finance Department of the Union of India in not considering the claim of the petitioner for payment of revision of pay scale at Annexure-N also not legal and valid and therefore the decision taken on such application vide its document at Annexure-R4, is wholly unsustainable in law, hence the same is liable to be quashed.

For the aforesaid reasons and the findings recorded by this Court on the basis of the pleadings and the undisputed documents referred to supra, I have to hold that there is no actual service of notice of the circular at Annexure-B upon the petitioner. Therefore, the issuance of Annexures-D, R4, R5 and L by the respondent-Bank are not tenable in law as the respondent-Bank at the time of considering the option forms submitted by the petitioner has not considered the same properly and not examined the relevant facts namely the actual service of the circular at Annexure-B upon the petitioner properly. The respondent was required to consider the option forms and the representations submitted by the petitioner vide Annexures-C, R1, J, K and N properly and granted the revised pay scale which has not been done by the respondent. Therefore, the petitioner is entitled for the reliefs as prayed for in the writ petition.

For the reasons stated supra, the submissions made on behalf of the respondent-Bank by the learned Counsel for the respondent Mr. Sawkar contending that there is no proper explanation given by the petitioner in the option forms and representations for submitting belated option forms, which are beyond 30 days is also not tenable. Therefore, the respondent-Bank was not justified in issuing the impugned endorsement at Annexures-D, L, R4 and R5 to the petitioner, therefore, the submissions on behalf of the respondents cannot be accepted by this Court as the same are not tenable in law for the reasons recorded by me particularly the service of circular was not there upon the petitioner prior to submitting his option form either at Annexure-C or other applications and representations. Further this Court has to hold having regard to the nature of right conferred upon the officers of the Bank under the circular Annexure-B after amending the Regulations it should have seen that the fundamental rights are guaranteed to the officers of the Bank under Statutes 14 and 16 of the Constitution of India, the 30 days period of limitations as prescribed in the circular for submission of the option forms by the willing officers for acceptance of revised pay scale is only directory but the same should not have construed as mandatory by the Bank. For this reason also the impugned endorsements issued at Annexures-D, L, R4 and R5 are bad in law, hence the same are liable to be quashed. Accordingly, I pass the following order.-

Writ petition is allowed. Rule made absolute. The impugned endorsements at Annexures-D, L, R4 and R5 are hereby quashed and further the respondent is hereby directed to reconsider the matter on the basis of the option forms referred to supra submitted by the petitioner. Keeping in view the circular was not brought to the notice of the petitioner and therefore the option form was not submitted immediately within 30 days of the knowledge of circular Annexure-B by him and expressed his willingness to accept the benefit of the revised pay scale of 1984 and in the light of the observations made in this order within six weeks from the date of receipt of this order. The respondent is further directed to pay all the consequential benefits including the arrears from the date of his entitlement of revised pay scale, made as on today which are applicable to the officers of the respondent-Bank after consideration of the case of the petitioner in the light of the observations made in this order and keeping in view the revision of pay scale under the Regulations and the fundamental rights guaranteed to the petitioner under Articles 14, 16 and 21 of the Constitution of India.