State Bank of Patiala vs Gian Chand Garg

Jawahar Lal Gupta, J.—Gian Chand Garg, the present respondent approached this Court through a petition under Article 226 of the Constitution. His grievance was that he had been wrongly debarred from appearing in the test conducted by the Bank on September 20, 1987 for promotion of officers from Junior Management Grade Scale I to Middle Management Grade Scale II. The learned single Judge found that Mr. Garg had been wrongly debarred from appearing in the test. Consequently, it was ordered that he shall be deemed to have cleared the test from appearing in which he was wrongfully debarred. On this basis, the Bank had been directed to promote him to Middle Management Grade Scale II w.e.f. August 1, 1985 like those who appeared in the test and cleared it. Aggrieved by the decision of the learned single Judge, the Bank has filed this appeal.

Mr. C.B. Goel, learned counsel for the appellants has pointed out that the name of the respondent-writ petitioner had been duly included in the list of eligible candidates who were to appear in the test scheduled for September 20, 1987. In fact, his name was at Sr. No. 133 in the list notified by the Bank on May 22, 1987. However, while doing so, the Bank had overlooked the fact that in the year 1984, the petitioner had been found absent from the office on two occasions viz. September 26, 1984 and October 15, 1984. Still further, it was noticed that the keys of two Branch almirahs containing ledgers and registers etc. were allowed to remain in the custody of the Daftri of the Branch. On the basis of these lapses, a notice was issued to the respondent and after consideration of the matter, he was ''censured'' vide order dated December 19, 1986. In view of the order of censure, it was felt that the respondent was not eligible to appear in the test which was being conducted to fill up the posts that had occurred upto August 1, 1985. Besides the factual position, learned counsel has also contended that a person who has not even appeared in the test cannot be deemed to have appeared and qualified by any process of law or logic. Accordingly, the counsel submits that the view taken by the learned single Judge cannot be sustained.

On the other hand, Mr. M.M. Kumar, counsel for the respondent-writ petitioner has contended that having joined service in the year 1978, he had become eligible for competing for promotion to the posts in the middle Management Grade Scale II, The mere fact that certain lapses had been noticed or that even an order of censure had been passed, did not (sic) disqualiy the officer from appearing in the competitive selection. Learned counsel emphasises that the Bank was filling up the vacancies which had occurred upto August 1, 1985 and an order of censure passed in December 1986 could not have furnished a valid basis for ignoring him.

Admittedy, the lapses alleged against the petitioner related to the year 1984. The notice was issued to the petitioner on June 6, 1986. The order of censure had been passed on December 19, 1986. Thus, the misconduct for which the penalty of censure had been awarded to the petitioner had been committed prior to August 1, 1986 and the order of punishment had been passed in December 1986. On this basis, the Bank had taken the view that the officer was not eligible to compete for promotion to the posts which had to be filled up strictly on the basis of merits. Thus, he was not allowed to appear in the competitive selection. Still further, it is the admitted position that the respondent had been permitted to take the test which had been conducted in September, 1988. This test was held to fill up the posts which had occurred upto August 1, 1986. Admittedly, the petitioner had failed to make the grade. Thus, the two facts which stand established on the record are (i) the petitioner was accused of some misconduct relating to the year 1984 and was punished in the year 1986; and (ii) he had actually appeared, in the test held in September 1988 and had failed to make the grade. In spite of this position, the leaned single Judge took the view that it would be in the interest of justice to assume that the petitioner had appeared and qualified. We think that the learned Judge was it error in doing so. Regretfully, though respecfully, we are unable to support the decision and, consequently, set it aside.

Mr. Kumar pointed out that the respondent is, in fact, a meritorious officer. He had actually appeared in the test held in November 1988. Having passed it, he was promoted to the Middle Management Grade Scale II w.e.f. August 1, 1987. Learned counsel has further pointed out that the respondent is now in the Senior Management Grade Scale IV. On this basis, it was sought to be contended that the directions given by the learned single Judge are in conformity with law and should be sustained.

We are unable to do so. It is the admitted position that the posts in the Middle Management Grade Scale II are filled up by two methods. One of these methods is by competitive selection. The second method is based on seniority-cum-suitability. The test in November 1988 was conducted to fill up the posts on the basis of seniority-cum-suitability. The respondent had undoubtedly been found suitable for promotion by this method. However, a person who has been promoted on the basis of seniority-cum-suitability cannot claim that he had a right to be promoted even on the basis of the competitive selection for which he had been found wanting only in September 1988. Secondly, even if the respondent has now reached the seniority Management Grade Scale IV, it does not mean that he should be deemed to have been promoted to the Middle Management Grade Scale II with effect from the year 1985.

Mr. Kumar has placed reliance on two decisions. Firstly, he has referred to the judgment of their Lordships of the Supreme Court in New Bank of India Vs. N.P. Sehgal and Another, . In this case, it was inter alia held by their Lordships that "even if disciplinary action is in process against an officer....that would not entitle the ... .Bank to exclude from consideration for promotion the officer concerned if he is otherwise entitled to be so considered." Such is not the position in the present case. The respondent was not excluded from consideration on the ground that the disciplinary action was in process. In fact, there was a concluded finding against him and he had been censured. Still further, this finding related to a period which was anterior to the occurrence of the vacancy. Thus, the ground on which the Bank took the view that the respondent should be excluded from consideration was not extraneous to the issue of suitability.

Mr. Kumar also placed reliance on the decision of a single Bench of this Court in OP Latka v. The State Bank of Patiala, CWP No. 10971 of 1988, decided on May 2, 1991, 1991 ISJ 502. This was a case wherein the officer had been declared suitable for promotion on April 26, 1986. Yet, he was not promoted because a charge sheet had been served on him subsequently. Thus, the promotion was denied on the basis of an event which was post-declaration of suitability. Again the distinction is too obvious to require an elaborate consideration of the judgment.

No method to fill up posts or to make selection can be perfect. Some loophole can always be found. Such can be the position even in the present case. However we find that the view taken by the Bank on an overall consideration of the factual position was not arbitrary or unfair. It does not shock our conscience. Consequently, we are not persuaded to interfere.

Resultantly, we allow the appeal and set aside the order passed by the learned single Judge. As a result, the writ petition is dismissed. However, the parties, should bear their own costs.