Praveen Khanna and Others vs State Bank of Patiala and Others

Ajay Tewari, J.—The petitioners have challenged in this petition the promotions of respondent Nos. 4 to 8 to the posts of MMGS-IV. The primary ground taken that originally only six posts had been notified to be filled up by the impugned selection process and six persons were duly promoted. Thereafter many officers filed appeals. Ultimately the appeals of respondent Nos. 4 to 6 were accepted and they were promoted. Grievance is that while promoting them, none of the earlier candidates were reverted and, therefore, as against six vacancies 11 promotions were made. It is further stated that in the following year, those surplus posts were taken out of the promotion quota. In these circumstances, the following prayer is made:

II. to issue a writ in the nature of Certiorari quashing the selection and appointment of Respondents 4 to 8 issued vide Memo. No. PER/1 dated 1.4.99 (P-5) retrospectively w.e.f. 9.9.98 the date of promotion of other promotees against non-existent/anticipated vacancies for which selection process had not yet been initiated having been posted arbitrarily in colourable exercise of authority contrary to the law laid down by the Supreme Court.

Thereafter it has been brought out for the subsequent year, out of the 10 fresh posts created, only 5 were filled up.

In the written statement filed by the respondents, the only reason given for filling up more posts than those notified is that this has been the practice in the bank from the very beginning.

Learned counsel for the petitioners has relied upon the judgment of Rakhi Ray and Others Vs. The High Court of Delhi and Others, , wherein Hon''ble the Supreme Court held as under:

In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law.

In these circumstances, there can be no escape from the conclusion that promotion of 5 persons made over and above those notified six vacancies was illegal. However, this is not the end of the matter. A perusal of the prayer Clause reveals that the petitioners have not sought any consequential relief for themselves. It is not their case that they should have been promoted not only in place of the 5 extra persons, but even the six originally selected candidates. This Court cannot order that the petitioners should be accommodated against the 5 illegally promoted officers. Petitioners could have succeeded if they had shown that they had better merit than the six originally promoted officers. Those 6 officers are not before this Court. Resultantly, no relief can be granted to the petitioners in the absence of the affected parties. In these circumstances, it is held that the practice of the respondent-Bank in making promotions over and above the number of notified vacancies is absolutely illegal. Annexure P-7 with the writ petition is the agenda item No. 621/D-7 of Executive Committee Meeting dated 17.08.1998. This document reveals that against 144 categorised positions in SMGS-IV as on 01.04.1997, 173 officers were working and out of those 144 positions, 10 were newly created positions. It is not open to the respondent-Bank to make promotions over and above the notified vacancies. If the appeal of any officer is allowed, it can only be vis-�-vis selected candidate who has to be reverted.

The petition is dismissed with the above observations.