Uttam Manohar Sawad and Others vs State Bank of Bikaner and Jaipur

Veerender Singh Siradhana, J—The petitioners, after having participated in the recruitment process for promotion to the post of Junior Management Grade Scale-I (for short, ''JMGS-I''), have approached this Court, praying for the following relief(s):

"It is therefore, prayed that this writ petition may kindly be allowed and by appropriate writ, order or directions, the circular dated 21.8.2012 may kindly be quashed and set aside to the extent of prescribing maximum number of promotion only upto 40% of the vacancies in Group B.

That the respondents may be directed to consider the petitioners, who are in Group B, for their promotion from clerical cadre to the post of JMGS Grade I against the remaining unfilled vacancies of Group A.

That by appropriate writ, order or directions, the respondents may be directed to promote the petitioners to the post of JMGS Grade I against the unfilled vacancies with all consequential benefits.

Any other relief which this Hon''ble Court may deem fit in favour of the petitioners may also be given to them."

Briefly, the essential skeletal material facts necessary for appreciation of the controversy needs to be first noticed. The petitioners belonging to Group ''B'' of the Clerical Cadre appeared in the examination, in response to circular dated 21st August, 2012. Having been unsuccessful for promotion from Group ''B'', the petitioners have challenged the restriction of 40%, as contemplated in the promotion policy from Clerical to Officers Cadre under Trainee Officer Channel (Group B). The challenge is mainly based on the ground that no such restriction was adhered to in the previous years right from 2007 onwards, and shifting of the unfilled vacancies of Group ''A'', was a practice in vogue. The unfilled vacancies of JMGS-I, were filled up from amongst the eligible candidates of Group ''B'', and this was the established practice. Instances have been cited with reference to the promotions made in the year 2007, 2008 and 2010.

The learned counsel for the petitioners reiterating the pleaded facts and grounds of the writ application, laid much thrust on the practice that was prevalent i.e. not adhering to the condition of percentage beyond which shifting of vacancies of promoted posts of JMGS-I, which remained unfilled on account of non-availability of eligible candidates of Group ''A'' of the respondent-Bank, were filled up from the eligible candidates in under Group ''B'' of the Clerical Cadre.

In the instant case at hand, the respondent-Bank advertised total 200 vacancies for promotion from Clerical to Officers Cadre in Junior Management Grade Scale-I (JMGS-I), for the year 2012-13. Break up of vacancies for different groups of clerical cadre was specifically provided i.e. for Group ''A'' 100 vacancies, for Group ''B'' 60 vacancies and for Group ''D'' 40 vacancies.

The petitioners did participate for promotion through written examination being eligible under Group ''B'' of the Clerical Cadre, which contemplates minimum service of two years with JAIIB (for Graduates) and 3 years service with JAIIB (for Matriculates). For the Group ''A'', of the Clerical Cadre, the minimum service required, for General Category candidates is 6 years, and for SC/ST category candidates five years.

According to the learned counsel as against the 100 vacancies, available for Group ''A'', only 19 candidates were selected. Thus, 81 vacancies remained unfilled and by granting relaxation to the extent of 40%, under the Policy for promotion from Group ''B'', 20 more candidates became available for filling up of the vacancies of JMGS-I from Group-B. Still 61 vacancies remained unfilled and these vacancies ought to have been filled up from Group ''B'' candidates, to which the petitioners belong. The respondent-Bank, having not permitted the shifting of the unfilled vacancies to be filled from Group ''B'' candidates, for non-availability of eligible candidates from Group-''A'', is thus, arbitrary, illogical and contrary to the practice that was in vogue in the earlier years. In support of his submissions, the learned counsel has placed reliance on the opinion of Delhi High Court in the case of Lalit Kumar Virmani & Ors. v. United Bank of India & Ors., decided on 21st May 1996.

In response to the notice of the writ application, the respondent-Bank has filed its counter affidavit, justifying the policy decision and the restriction, as contemplated under Clause (viii) in the policy document meant for promotion from Clerical to Officer cadre with reference to candidates from Group ''B''. In support of his submissions, the learned counsel for the respondent-Bank has placed reliance on the opinion of the Hon''ble Apex Court of the land in the case of Andhra Bank Vs. B. Satyanarayana and Others, AIR 2004 SC 4007 : (2004) 2 JT 312 : (2004) 2 LLJ 5 : (2004) 2 SCALE 446 : (2004) 2 SCC 657 : (2004) SCC(L&S) 433 : (2004) 2 SCR 304 : (2004) 2 SLJ 227 : (2004) AIRSCW 4303 : (2004) 2 Supreme 1 , K.A. Nagamani Vs. Indian Airlines and Others, AIR 2009 SC 3240 : (2009) 122 FLR 198 : (2009) 4 JT 674 : (2009) 4 SCALE 670 : (2009) 5 SCC 515 : (2009) 2 SCC(L&S) 57 : (2009) 5 SCR 89 : (2010) 1 SLJ 11 : (2009) 4 SLR 648 : (2009) AIRSCW 3265 .

Learned counsel for the respondent-Bank referring to the minutes of the meeting held on 25th May, 2012, asserted that the issue was considered by the State Bank of India, as would be evident from the minutes of the meeting with the representative of State Sector Bank Employees Association (for short, ''SSBEA''). After detailed deliberations, including the suggestions made by the representation of SSBEA, the promotion policy was finalized, which contemplates ceiling of 40% vacancies for filing of unfilled vacancies of JMGS-I from amongst the eligible candidates of Group ''B'' of the Clerical Cadre. From the communication dated 30th January, 2013, as referred to and relied upon, by the learned counsel for the respondent-Bank, it is evident that the matter was considered by the competent Authority while dealing with the issue of unfilled vacancies of JMGS-I Cadre from Clerical Cadre of Group ''A'' and Group ''B'', in the backdrop of the legal notice served on behalf of the petitioners.

I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my earnest consideration to the rival submissions at the Bar.

Indisputably, the petitioners belonged to the Group ''B'' of the Clerical Cadre with two years of service and required qualification of JAIIB (for Graduates) and 3 years with JAIIB (for Matriculates), who participated in the recruitment process involved herein. The Clerical staff under the New Promotion Policy for promotion from Clerical Cadre to Officers Grade has been classified under Group ''A'', ''B'' and ''D''. For Group ''A'', the minimum service required, is 6 years for General category and 5 years for SC/ST category, candidates. For Group ''B'' candidates, the minimum service for General category candidates is two years with JAIIB (for Graduates) and 3 years with JAIIB (for Matriculates). For Group ''D'', the minimum service required is 12 years for General category whereas in the case of candidates of SC/ST category, it is 10 years service.

The communication, dated 30th January, 2013, specifically incorporated the reasons for declining the claim of the petitioners. Further, it is not in dispute that the service conditions and eligibility criteria for Group ''A'' and Group ''B'', of the Clerical Cadre, are different. Even transfer of 10% of the vacancies to Group ''B'', if there are still unfilled vacancies available for promotion from Group ''A'', is permitted to be filled up from candidates of Group ''B'', provided they are eligible (in terms of eligibility criteria/minimum years of service etc.). Criterion for promotion from various groups of Clerical Cadre has been fixed after detailed discussions with the SSBEA, with the object to extend weightage to seniority. The reasons furnished for the policy adopted by the respondent-Bank have not been questioned for violation of any of the statutory provisions.

The employer is entitled to lay down policy decision including criteria for grant of promotion to its employees is a well recognized principle of service law jurisprudence. With the changing dynamics in the field of information technology and its application in the banking sector the eligibility criteria laid down and policy framed by the respondent-Bank on a realistic basis having regard to the fact that the critical positions be manned by the experienced officers cannot be faulted unless there is a violation of any statutory provisions of law. Moreover, once a power vests in an authority by reason of the provisions of a statute, it is trite that such power can be exercised from time to time having regard to the requirement of management as also the exigency of the situation obtaining at the relevant time, as has been held by the Hon''ble Apex Court of the land in the case of Andhra Bank (supra).

The State Bank of India (Subsidiary Banks) Act, 1959 (hereinafter referred to ''the Act of 1959''), under Section 24 mandates the subsidiary Banks to comply with the directions and instructions issued by the State Bank of India. Section 24 of the Act of 1959, reads thus:

"Section 24. (1) The State Bank may, from time to time, give directions and instructions to a subsidiary bank in regard to any of its affairs and business, and that bank shall be bound to comply with the directions and instructions so given.

(2) Subject to any such directions and instructions, the general superintendence and conduct of the affairs and business of a subsidiary bank shall, as from the appointed day, vest in a Board or Directors who may, with the assistance of the [managing director] exercise all powers and do all such acts and things as may be exercised or done by that bank.

(3) The Board of Directors of a subsidiary bank shall, in discharging its functions under this Act, act on business principles, regard being had to public interest."

The power of the State Bank of India to frame regulations is conferred by Section 63 of the Act of 1959, which reads thus:

"Section 63. (1) The State Bank may, with the approval of the Reserve Bank, [by notification in the official Gazette] make in respect of a subsidiary bank regulations, not inconsistent with this Act and the rules made thereunder, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for-

(a) the powers and duties of the [managing director] of the subsidiary bank;

(b) the fees and allowances which may be paid to directors or others for attending any meetings of the Board of Directors or of its committees (including the executive committee) or other committees or for attending to any other work of the subsidiary bank;

(c) the time and place at which, and the manner in which, the business of the Board of Directors of the subsidiary bank shall be transacted and the procedure to be followed at the meetings thereof;

(d) the constitution of the executive committee of the subsidiary bank and the conditions and limitations subject to which the executive committee may exercise its powers and the procedure to be followed at the meetings thereof;

(e) the formation of any other committees, whether of the Board of Directors of the subsidiary bank or otherwise, and the delegation of powers and functions of the Board to such committees and the conduct of business in such committees;

(f) the nature of shares of the subsidiary bank, the manner in which, and the conditions subject to which, shares may be held and transferred and generally all matters relating to the rights and duties of shareholders;

(g) the maintenance of share registers, and the particulars to be entered in such registers in addition to those specified in section 21, the inspection and closure of the registers and all other matters connected therewith;

(h) the holding and conduct of elections under this Act and the final determination of doubts or disputes regarding the qualifications of candidates for election or regarding the validity of elections;

(i) the manner in which general meetings shall be convened, the procedure to be followed thereat and the manner in which voting rights may be exercised;

(j) the manner in which notices may be served on behalf of the subsidiary bank upon shareholders or other persons;

(k) the payment of dividends, including interim dividends;

(l) the delegation of powers and functions of the Board of Directors of the subsidiary bank to the [managing director] or directors or officers or other employees of that bank;

(m) the conditions and limitations subject to which the subsidiary bank may appoint officers, advisers and other employees and fix their remuneration and other terms and conditions of service;

(n) the duties and conduct of officers, advisers and other employees of the subsidiary bank;"

Regulation 17 of the State Bank of Bikaner and Jaipur (Officers'') Service Regulations, 1979 (hereinafter referred to ''Regulations, 1979'', for short), framed in exercise of powers conferred by Section 63 of the Act of 1959, in no uncertain terms provides that the policy is to be framed in exercise of the powers conferred by the Board or the Executive Committee from time to time having regard to the State Bank''s guidelines. Regulations 17 of the Regulations, 1979 reads thus:

"17. Promotions to all grades of officers in the Bank shall be made in accordance with the policy laid down by the Board or the Executive Committee from time to time having regard to the State Bank''s guidelines."

Explanation: For the avoidance of doubts, it is clarified that the provisions of this regulation shall also apply to promotions of any category of employees to the junior management grade."

In the case of Andhra Bank (supra), wherein the validity of circular was questioned. The Hon''ble Supreme Court having held that the employer is entitled to lay down the policy decision providing for criteria for grant of promotion to its officers, the relevant text of the judgment reads thus:

"11. It is a well-settled principle of service jurisprudence that the employer is entitled to lay down policy decision laying down the criteria for grant of promotion to its officers. The eligibility norms for such promotions must be defined by the bank on a realistic basis where for a system to choose the best available talent to man the critical positions is to be devised. Once a power vests in an authority by reason of the provisions of a statute, it is trite that such power can be exercised from time to time. Changes are required to be made keeping in view the requirement of the management as also the exigency of the situation obtaining at the relevant time. Furthermore, it is one thing to say that by reason of Section 19, the Parliament has conferred essential legislative functions upon the Board of Directors to make regulation but it is another thing to say that the regulation is arbitrary and ultra vires as it did not contain sufficient guidelines. The High Court did not come to the conclusion that essential legislative competence of the Parliament has been delegated to the Board of Directors in terms of Section 17 of the Act or otherwise.

The regulations in terms of Sub-section (2) of Section 12 read with Section 19 of the Act were required to be framed by the Board of Directors. For amending the regulations each time they were not only required to consult the Reserve Bank of India and obtain previous permission of the Central Government but also the amended regulations were required to be laid before both the Houses of the Parliament in terms of Section 13 of the Act. With a view to avoid the rigors of such procedural requirements, we see no reason as to why the said power cannot be delegated to the Board of Directors keeping in view of the fact that the policy decision required to be laid down for effecting promotions to different grades of officers and employees at different points of time."

In the case of K.A. Nagamani (supra), the Hon''ble Supreme Court, reiterating the earlier opinions in the case of Madan Lal and Others Vs. State of Jammu and Kashmir and Others, AIR 1995 SC 1088 : (1995) 2 JT 291 : (1995) LabIC 1575 : (1995) 1 SCALE 494 : (1995) 3 SCC 486 : (1995) 1 SCR 908 : (1995) 2 SLJ 161 : (1995) 2 UJ 817 , and in the case of Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others, AIR 2002 SC 2322 : (2002) 1 JT 159 Supp : (2002) LabIC 2168 : (2002) 4 SCALE 528 : (2002) 6 SCC 127 : (2002) 3 SCR 948 : (2002) 2 SCT 1093 : (2002) 3 SLJ 88 : (2002) AIRSCW 2457 : (2002) 4 Supreme 218 , held that the candidates after having participated in the selection process without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for appointment. The relevant text of the judgment reads thus:

"26. Yet another aspect of the matter: That the appellant admittedly had participated in the similar selection process for erstwhile grade 15 and 16, Manager (Maintenance/Systems) and Senior Manager (Maintenance/Systems) respectively. The Corporation had given adequate opportunity to the appellant to compete with all other eligible candidates at the selection for consideration of the case of all eligible candidates to the post in question. The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion. In Madan Lal and Others Vs. State of Jammu and Kashmir and Others, AIR 1995 SC 1088 : (1995) 2 JT 291 : (1995) LabIC 1575 : (1995) 1 SCALE 494 : (1995) 3 SCC 486 : (1995) 1 SCR 908 : (1995) 2 SLJ 161 : (1995) 2 UJ 817 , this Court observed: "It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair: Therefore, the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful." Reference may also be made to the decision of this Court in Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others, AIR 2002 SC 2322 : (2002) 1 JT 159 Supp : (2002) LabIC 2168 : (2002) 4 SCALE 528 : (2002) 6 SCC 127 : (2002) 3 SCR 948 : (2002) 2 SCT 1093 : (2002) 3 SLJ 88 : (2002) AIRSCW 2457 : (2002) 4 Supreme 218 ."

In the case of Lalit Kumar Virmani And Ors. (supra), the question, fell for consideration before the Delhi High Court, was the legality, validity and correctness of the Circulars Annexure P-4 and P-6, which were found contrary to the policy, Annexures P-1 and P-3; consequently, were quashed and set aside. In the instant case at hand, the petitioners have not laid any such challenge to any Circular or the policy rather the petitioners are seeking modification in the policy so as to do away with the outer limit of 40% of total vacancies of JMGS-I, which remained unfilled, must be filled up from amongst the Group ''B'', in the event of eligible candidates were not available from Group ''A'' of the Clerical Cadre.

The challenge and the grievance raised cannot be sustained for what has been held by the Hon''ble Apex Court of the land in the case of Dhananjay Malik and Others Vs. State of Uttaranchal and Others, AIR 2008 SC 1913 : (2008) 1 CLT 753 : (2008) 3 JT 611 : (2008) 3 SCALE 425 : (2008) 4 SCC 171 : (2008) 1 SCC(L&S) 1005 : (2008) AIRSCW 2158 : (2008) 2 Supreme 328 and K.A. Nagamani (supra), where the candidates after having participated in the selection process without any demur or protest challenged the criteria or the process itself.

For the discussions hereinabove, the writ application is devoid of any substance, and therefore, merits rejection.

In the result, the writ application fails and is hereby dismissed.

The stay application stands closed.

No costs.