UCO Bank vs Sujit Bhattacharjee And Others

The appellant-employer assails a rather remarkable order by which the writ petitioner-employee has been found to be "notionally entitled to be promoted" to a post in the year 2006 on a petition instituted in 2011 after such employee had already retired.

Two principal grounds are canvassed by the appellant: that the writ petitioner had no right to seek any promotion or notional benefit pertaining to promotion after he had retired and the master-servant relationship between the parties had been severed, though the writ petitioner could continue to be entitled to the pensionary or retirement benefits; and, the writ court could not have assumed the jurisdiction of the interview board or the assessing authority and discovered that the writ petitioner was entitled to promotion in 2006, particularly without any documents or papers being available before the writ court.

The facts are not much in dispute. The writ petitioner was suspended in 2005 and disciplinary proceedings were commenced against him pursuant to a charge-sheet issued on January 5, 2006. However, by early 2007 the writ petitioner was acquitted of the charges and was reinstated in service without losing out on any account.

It does not appear that the writ petitioner immediately complained to the employer for the writ petitoner not having been afforded an opportunity to participate in a process for promotion that took place in 2006 when the writ petitioner remained suspended. The writ petitioner continued in service till 2011 and, after his superannuation, the present proceedings were instituted on the pretext that the writ petitioner was not informed of the process of promotion at the relevant time, and, thus, deprived of his right to participate in such process.

Surely, upon the writ petitioner being reinstated in 2007, the writ petitioner would immediately have come to know that there was a promotion process which took place in 2006 and the writ petitioner had been left out therefrom. The writ petitioner claims that he came to learn from some of his colleagues who were junior to him that they had been promoted to a junior cadre management post from their clerical post.

According to the Promotion Policy Settlement for Workmen Staff of employer UCO Bank that the writ petitioner has relied on, the vacancies in the officers' cadre in the junior management grade scale-I is filled up through three channels: 20% by direct recruitment; 50% through merit-cum-seniority; and, the balance 30% through seniority from among senior clerical staff. According to the writ petitioner, it is under the third category that the writ petitioner ought to have been considered, particularly since those junior in service to the writ petitioner in the clerical post were promoted in 2006 or thereafter.

By the impugned judgment and order dated March 6, 2014, the writ court found that the action on the part of the employer bank in not informing the writ petitoner of the promotion process was improper; that even an employee under suspension had a right to participate in the promotional process; and the writ petitioner had been deprived of his promotional right in 2006. Upon referring to a judgment reported at AIR 2014 SC 1128 (Major General H. M. Singh v. Union of India), the court of the first instance proceeded to observe that the writ petitioner "is notionally entitled to be promoted to the post of junior Management Grade Scale - I, as per the relevant circular dated March 22, 2006, from the date his juniors were promoted to the said grade and all consequential benefits of such notional promotion should be released to the writ petitioner within a period of four weeks from the date of communication of this order."

Two things stand out in the impugned judgment and order. The first is the concept of notional promotion and the entitlement of the writ petitoner to retirement benefits on the basis of the writ petitoner having been notionally promoted when the writ petitoner never discharged any duties of the promoted post during his tenure in service. The second aspect is the rather remarkable assumption of jurisdiction by the writ court as the assessing authority and the finding that the writ petitioner was entitled to be notionally promoted without reference to the ACR or service records of the writ petitioner or the other contenders for promotion at the relevant point of time.

As to the case of Major General H. M. Singh, it is evident that the dictum in such case is of no relevance in the present context and the principle enunciated in such reported case could not have assisted the writ petitioner one bit to obtain the remarkable order of notional promotion years after his retirement. In the case of Major General H. M. Singh, the Major General was eligible to be considered for promotion to the post of Lieutenant General which would have given him an additional year in service beyond the usual retirement age of 59 years. Despite the employer's attempt to delay the matter up beyond the imminent retirement of the Major General, his repeated entreaties forced the authorities to take the matter up for consideration prior to his retirement and the Major General's service was extended, first by three months and again by another month till June 30 of the relevant year so that the decision on his promotion could be taken within such time. The relevant board recommended the Major General to be promoted, but it was ultimately not accepted by the government. By an order of June 2 of the relevant year the government said that the Major General was not considered fit for promotion and, consequently, on June 3 of the relevant year the Major General was made to retire. The challenge, thereafter, was to be decision of June 2 of the relevant year and the retirement on June 3 of the relevant year. Ultimately, the Supreme Court found in favour of the Major General and, in such context, since the retirement age of the Major General would have stood extended by virtue of his promotion, the Supreme Court extended the age in service of the writ petitioner in that case. Nothing in such matter or the principles of law involved in the decision bear in resemblance to the facts of this case or have any manner of application herein. The Single Bench was clearly in error in relying on the judgment to extend any relief to the writ petitioner in the present case.

For a period of more than three years after the writ petitioner was reinstated in 2007, the writ petitioner continued in service. If the writ petitioner had challenged the denial of the opportunity to the writ petitioner to participate in the process for promotion in 2006 during the time that the writ petitioner was in service, different considerations may have followed. However, once the writ petitioner retired from service and there was no scope for the writ petitioner to serve in the promoted post, there was no question of the matter being taken up for consideration. It is elementary that post-retirement, there can be no promotion and it is equally rudimentary that if a person has not worked at a particular post, the post-retirement benefits due to the holder of such post are, ordinarily, not be extended to such retiree.

At any rate, it could never have been the writ petitioner's case that he was entitled to be promoted as a matter of course. As would be evident from the rules quoted above, the writ petitioner was not eligible under the first two categories. The writ petitioner could only have been considered under the third category and it was incumbent on the part of any assessing authority to compare the seniority of the writ petitioner along with the others before coming to a conclusion that the writ petitioner was entitled to the promotion.

The simple defence of the employer in this case was that it was for the writ petitioner to participate in the process for promotion and, upon the writ petitioner not participating therein, there was no question of the writ petitioner lodging any complaint subsequently. Though the writ petitioner has relied on a practice or even provision in the rules that if a person is on leave at the time that a promotion exercise is taken up, such person should be informed thereof; there is no equivalent rule or practice that the writ petitioner has been able to cite pertaining to an employee under suspension. Even if the analogy is extended to the case of a suspended employee, it is plain to see that the objection ought to have been taken by the writ petitioner immediately upon his reinstatement or within a reasonable time thereafter. At any rate, the writ petitioner could not have waited till his superannuation before he challenged the perceived failure of the employer to afford him an opportunity to participate in a process for promotion in 2006, some five years prior to his retirement.

For the reasons aforesaid, the judgment and order impugned have no legs to stand on and are set aside. The writ petition stands dismissed.

All additional benefits that the writ petitioner has received pursuant to the order impugned or in terms of any interim order in this appeal have to be disgorged and the employer will be entitled to deduct the same from the future pension or other amounts payable to the writ petitioner.

The writ petitioner seeks a stay of the operation of the order which is declined.

There will be no order as to costs.

Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.