Patel Ram Meena vs Reserve Bank of India and Others

Aggrieved by the order dated 27.7.2015, passed by the Single Judge, dismissing the writ petition, this special appeal has been preferred.

The petitioner appellant preferred the writ petition on denial of promotion on the post of Assistant Care Taker. Learned counsel for petitioner appellant submits that petitioner appellant belongs to Scheduled Tribe category and was appointed as Mazdoor in Class IV cadre on 19.5.1980. He was then promoted within Class IV cadre to the post of Sr. Official Attendant and thereafter to the post of Head Office Attendant vide order dated 1.7.2007. He became entitled for promotion to the post of Assistant Care Taker in Class III cadre, however, his candidature has been over looked by the non-appellants since 2011. In the subsequent years also, he was not given promotion despite assurance thus petitioner was left with no option but to approach this court.

Learned Single Judge has dismissed the writ petition finding punishment against the petitioner appellant in the year 1998. It was in ignorance of the fact that as per settlement between All India Reserve Bank Workers'' Federation and the Management of the Reserve Bank of India on 24.10.2005, time bound promotion scheme was revised and, therein, time bound promotions were made subject to suitability with reference to the confidential report, leave and vigilance report. The time bound promotion was given to the appellant in the year 2007 and it was after considering his suitability in reference to entire service record. The petitioner was found suitable for time bound promotion but on the same material, he has been adjudged unsuitable for promotion to Class III cadre. The denial of promotion to the petitioner appellant is mainly in reference to the punishment in the year 1998 and on complaints, which never culminated in the charge sheet and disciplinary action. The judgment of the Apex Court referred by the appellant were also ignored hence while setting aside the judgment, a direction may be given to the non-appellants to consider candidature of the petitioner appellant for promotion to the post of Assistant Care Taker.

Mr. SM Mehta, learned Senior Counsel, appearing for the Reserve Bank of India, submits that petitioner appellant was given time bound promotions in reference to the settlement between the federation and the management. Since promotion was to be given on completion of 20 and 27 years of service, appellant''s case was considered and he was given promotion as per the terms of the settlement. The criteria for time bound promotion is not similar to the regular promotion. The petitioner appellant is having two punishments and several complaints thus looking to the aforesaid facts, promotion was denied. The promotions in the Reserve Bank of India cannot be made casually as it is serving in the banking side where utmost security is required so as the sincerity of the employee. The appellant was not found fit for promotion to the higher post looking to the service record.

A reference of the circular dated 2.7.2012 has also been given. Clause 3.1 of the said circular provides that appointment to the post of Assistant Care Taker should be based not only on educational qualification but also conduct, personality, experience in the Military/Police/Territorial Army and ability to control maintenance and security of the staff. It also provides that all the employees in Class IV cadre would be eligible for promotion to the post of Assistant Care Taker subject to the seniority and suitability to be determined on the basis of service record and screening through interview. The eligible candidates were subjected to screening for promotion by the selection board consists of three members including Head of Office. The petitioner appellant was not found fit for the reasons given in the letter dated 20.1.2015 at annexure-R/1. In the said letter, a reference of material adverse to the appellant has been given and taking it to be the basis, promotion has been denied by the committee. Learned Single Judge has considered the aforesaid fact and finding no error in the action of the Bank, dismissed the writ petition. The order of the learned Single Judge may thus be maintained.

We have considered rival submissions of the parties and perused the record.

The main issue for our consideration is as to whether denial of promotion to the appellant on the post of Assistant Care Taker on the ground mentioned in the letter dated 20.1.2015 is proper or not. The appellant has been denied promotion since the year 2011 till 2015 and it is not disputed by the Bank that material considered against the appellant has been indicated in their letter dated 20.1.2015. It is also not disputed that appellant became eligible for promotion to the post of Assistant Care Taker in the year 2011 but denied promotion due to adverse material. The learned Single Judge has referred the letter dated 20.1.2015 in its order to show appellant to be under serious clouds. He was charge sheeted for fabricating a certificate to obtain admission of his daughter in the school. He was dismissed from services but, on an appeal, punishment was substituted by reducing the pay at the minimum of the pay scale. It was vide order dated 19.8.1998. The order of punishment was challenged by the appellant before this court by maintaining SB Civil Writ Petition No. 4300/2001 which was decided on 8.5.2003. The interference in the order of punishment was not made but High Court found charges to be trivial in nature but cannot be ignored lightly thus interference in the order of punishment was not made. The part of the judgment that the charges are trivial in nature, is favourable to the appellant.

Apart from the aforesaid punishment, reference of few complaints and private litigation inter se between the parties has been given by the Bank in their letter dated 20.1.2015.

Mr. Mehta, learned Senior Counsel could not clarify as to whether promotion can be denied merely on the complaints without an adverse order as a consequence thereof. In regard to delinquency of the year 1994, final order of punishment against the appellant is dated 19.8.1998. Apart from the aforesaid, one more punishment exists. The aforesaid material was available when respondent bank considered the case of the appellant for time bound promotions in pursuance to the settlement dated 24.10.2005. There, promotion is not on completion of 20 and 27 years of service alone but is subject to suitability. Therein also, suitability of the candidate is to be considered so as for promotion to Class III cadre. The respondent bank adjudged appellant to be suitable for time bound promotion and it is not once but twice promotions were given to him. Learned Senior Counsel appearing for the respondent bank could not show as to how on the same material one can be held suitable and then unsuitable as well. It is more so when adverse material used against the appellant is prior to his promotions under the settlement dated 24.10.2005. The action of the respondent bank becomes arbitrary if they make two opinion based on similar material. The over all suitability of the candidate is required to be considered in both the cases of promotion.

It is true that entire material can be seen while considering the case of eligible candidate for promotion but then it should not be on such material which has lived its life. The respondent - Reserve Bank of India is a welfare State and should give fair consideration to an employee. The delinquency committed almost 15 to 20 years back has lived its life. If the arguments of the bank are accepted, appellant would not get promotion in his service career. The adverse material can be taken as basis for denial of promotion on first occasion but not for all times in service career.

The theory of reforms needs to be applied. If an employee has committed a delinquency under given circumstances then he would never get promotion in his service, if that analogy is applied, it would go against the service jurisprudence where theory of reforms for improvement needs to be applied.

In most of the service laws, record relevant for promotion is seen for preceding five to seven years though for the respondent bank, it is the entire service record. The fact, however, remains that the appellant is one who has been denied promotion from the year 2011 onwards, whereas, for one or two delinquencies and punishment, denial of promotion can be on one or two occasions and not for ever. It needs to be observed that if the justification given by the respondent bank is accepted, appellant would not get promotion to the higher post during his service tenure.

The promotion, in the instant case, is based on seniority cum suitability and subject to interview but then in case of seniority-cum-merit, prominence remains to the seniority though suitability is also to be considered. In the case of merit-cum-seniority, prominence remains to the merit. The difference in two criteria for promotion needs to be considered.

In view of the discussion made above, action of the respondent bank to deny promotion to the appellant in reference to the material given in the letter dated 20.1.2015 cannot be said to be proper. The mere complaints without a disciplinary action cannot be taken adverse as an employee does not get chance to explain the allegation in the complaint unless enquiry is held. The service record should not be considered with different results for suitability as has happened in this case.

In the result, special appeal is allowed and impugned order dated 27.7.2015, passed by the Single Judge is set aside. The respondent bank is directed to consider case of the petitioner appellant for promotion to the post of Assistant Care Taker in accordance with the rules and the circular without influencing itself by the complaints not resulted in any adverse order and also by the punishments which are old by more than 13 years when with those punishments, appellant was adjudged suitable and given time bound promotion.