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Judgment
1 Since the petitioner in both the Writ Petitions is one and the same and the point involved in both the Writ Petitions is intertwined both the Writ Petitions are disposed of by this common order.
2(a) Seeking a declaration that the action of the respondent authorities in not promoting him to the post of Senior Joint Director on par with the other candidates who were issued promotion as illegal and arbitrary, and seeking a consequential direction to the respondents to declare that the petitioner is entitled to promotion to the post of Senior Joint Director with effect from 10.01.2014, the petitioner filed Writ Petition No.16911 of 2014.
2(b) While the above Writ Petition i.e. W.P.No.16911 of 2014 was pending, the petitioner filed Writ Petition No.21897 of 2017 questioning the notification dated 15.6.2017 issued by the respondent - IRDA for two posts of Chief General Manager without considering the petitioner for promotion to one of the posts as illegal and arbitrary.
3 The facts in brief as culled out from the affidavit filed in support of the Writ Petitions are as follows:
4 In pursuance of the advertisement issued by the first respondent the petitioner joined the services as Accounts Executive on 13.9.2001, which was redesignated as Deputy Director. Subsequently, the petitioner was promoted as Joint Director (Accounts) on 13.7.2009. On 24.9.2013 a draft seniority list of the Joint Directors was notified wherein the petitioner's name finds place at Sl.No.3. The Joint Director is eligible for further promotion to the post of Senior Joint Director. On 08.11.2013 the petitioner applied for the said post. Petitioner was issued two proceedings on 12.12.2013 stating that in so far as Joint Director (General) and Joint Director (Technical), he did not possess the requisite qualification and experience and vide another letter of the even date he was asked to appear for interview scheduled to be held on 21.12.2013 for the post of Senior Joint Director (F&A). After conducting interview, the first respondent issued office order dated 10.01.2014 promoting four Joint Directors as Senior Joint Directors, however, keeping vacant one such post and that the petitioner was not issued with proceedings promoting him to the said post. Aggrieved by the same, the petitioner made a representation dated 02.6.2014 requesting the authorities to look into the matter and promote him to the post of Senior Joint Director (F & A) on par with others. Since no favourable action is forthcoming, the petitioner filed the present Writ Petition.
5 After filing the above Writ Petition the petitioner filed I.A.No.1 of 2018 seeking to implead one Ms.Mamata Suri, Executive Director as second respondent to the Writ Petition and that petition was ordered.
6 The first respondent filed counter affidavit stating that a criminal case is pending against the petitioner and that the petitioner has also admitted the same. The CBI filed a charge sheet against several accused including the petitioner who was arrayed as accused No.7 for the offences punishable under sections 120-B, 420, 468 and 471 of IPC and Section 13 (2) read with 12 (1) (d) of Prevention of Corruption Act, 1988. The sum and substance of the said charge was that the Branch Manager and Accountant of Union Bank of India, Bangalore had entered into a criminal conspiracy with other accused to cheat the bank by furnishing fraudulent salary certificates in order to obtain housing loan.
7 It is further submitted that on receipt of information about the criminal case against the petitioner, the authority after verification issued an office order dated 10.12.2013, placing the confirmation of the petitioner in a sealed cover which could be acted upon on the conclusion of the criminal proceedings and on his exoneration in the criminal case.
8 However, for the post of Senior Joint Director (F & A), the candidature of the petitioner was processed in view of his fulfilling the eligibility criteria. Since the petitioner failed to follow the Staff Regulations inter alia Regulation 29 (4) of the IRDA (Conditions of Service of Officers and Other Employees) Regulations 2000 which categorically casts an obligation on the officers and employees to be honest in serving the organization faithfully and deliberately suppressed the factum of pendency of criminal case against him. Therefore, the promotion of the petitioner to Senior Joint Director was withheld.
9 After filing of the counter affidavit, the first respondent filed additional counter affidavit stating that the sealed cover containing the findings of the selection committee was opened and it was found that the petitioner secured 80 marks which were less than the marks secured by another competing candidate against one vacancy under F & A stream. Hence the petitioner was not considered for promotion to the post of Senior Joint Director.
10 The petitioner filed his reply to the counter affidavit and additional counter affidavit filed by the first respondent.
11 The petitioner submits that since he was already interviewed in relation to the post of Senior Joint Director, which is now equivalent to the post of Chief General Manager, and due to unjustified reasons the same was withheld, now the respondent cannot fill up both the posts unless and until their action is justified.
12 Fervently opposing the contents of the affidavit filed in support of the Writ Petition by the petitioner, the respondent filed counter primarily on the ground that the petitioner has not chosen to apply for the same in pursuance of the notification issued no 15.6.2017 for filing up of two posts of Chief General Manager (previously called as Senior Joint Director). Based on the legal opinion, since the petitioner involved in a criminal case, the matter of confirmation in the Joint Director Grade was kept in a sealed cover as per speaking order dated 10.12.2013 as per which the petitioner would continue to remain on probation till such time of conclusion of the criminal proceedings.
13 However, the petitioner was advised on 12.12.2013 to appear for interview for the post of Senior Joint Director to be held on 21.12.2013 under F & A stream as per his eligibility. The petitioner was confirmed in the Grade of Joint Director with effect from 13.7.2010 and his service since the date of promotion on 13.7.2009 was regularized. It was further averred that prayer of the petitioner in this Writ Petition is devoid of merit for the reason that all the four vacancies announced in terms of notification dated 23.10.2013 were already filled up in January 2014 and the petitioner failed to secure marks sufficient enough to get selected under F & A stream under which he was eligible and was assessed for promotion.
14 Furthermore, the petitioner, albeit eligible, did not apply for the selection process for promotion to the Grade of Chief General Manager under 'Other Departments' in the year 2016 and also in the promotion process for the year 2017 which has been completed on 18.7.2017. Hence prayed to dismiss the Writ Petition.
15 The petitioner filed reply to the counter affidavit reiterating the facts pleaded in the affidavit filed in support of the Writ Petition and denying the various averments made in the counter affidavit.
16 Heard Sri C. Raghu learned counsel for the petitioner in both the Writ Petitions and Sri M.V.Suresh learned counsel for the first respondent - IRDA. None appeared for the unofficial respondent - Ms.Mamata Suri.
17 As seen from the record, in the 58th meeting of the authority it was decided to delete ICWAI & CFA as qualifications in F & I stream. A perusal of the Executive Rules 2009-Schedule-I shows that the requisite qualification is stipulated as inter-CA, ACA & FCA but not CFA. The qualifications CFA & ICWAI have been totally removed. CFA means Chartered Financial Analyst and FCA means Fellow Chartered Accountant. CFA is a course offered by ICFAI or the institute of Chartered Financial Analyst of India. This course is offered for imparting in Investment of Financial Management whereas FCA means a qualification attained by an Associate Chartered Accountant after putting five years of practice as an accountant after qualifying ACA.
18 Further, the method recruitment for the post of Senior Joint Director is by promotion from among Joint Directors after four years subject to merit, suitability and seniority.
19 In minutes of the 59th meeting the authority approved the minutes of the 58th meeting subject to certain changes that wherever ACA / FCA is mentioned any other suitable qualification as decided by the Chairman may be added. But it is significant to note that CFA was not considered. The appointment of the second respondent is illegal since her qualification is CFA and also for the reason that as on the date of issuance of the notification dated 23.10.2013, the unamended Executive Rules 2009 were in force, which stipulate only FCA as eligible qualification for the post of Senior Joint Director. Though he attained 80 marks, since he is the only candidate, by virtue of his qualification, his case should have been considered. Moreover, the only process of appointment of Senior Joint Director is by internal promotion by way of notification and there is no other candidate being qualified and who is eligible for the said post pursuant to the notification. Since the second respondent per se disqualified as she does not possess the requisite qualification the petitioner has to be promoted as Senior Joint Director.
20 As far as the pendnecy of the criminal case against the petitioner for not considering his case for promotion is concerned, the inquiry or trial unconnected with the discharge of functions and duties with the employee of the respondent cannot be so expanded as to include anything unconnected with the employment./
21 It is the case of the petitioner that the vacancy in this matter requires basic qualification of FCA, which the petitioner possesses, whereas the unofficial respondent who has been promoted to the said post does not possess FCA, further she is having qualification of CFA only. The Chairman of the recruiting committee is not the authority under the guidelines but he is only one amongst the other members in the committee. The power of relaxing FCA is not vested with the Chairman since no resolution empowering the Chairman to that effect is passed. Hence the action of the Chairman in relaxing FCA as CFA / ICWAI providing appointment to the unofficial respondent is one without jurisdiction and is arbitrary action and it is also contrary to law.
22 In view of the same, the Writ Petitions are allowed and the impugned orders are set aside. Since the petitioner is only person qualified for the said vacancy as the FCA, the respondents shall consider the case of the petitioner in the above vacancy forthwith with all consequential benefits.
23 With the above observations and directions, these two Writ Petitions allowed and accordingly rule nisi is made absolute. No order as to costs. Miscellaneous petitions if any pending in these two Writ Petitions shall stand closed.