Civil Appeal No 1774 of 1990
From the Judgment and Order dated 1421990 of the Delhi High Court in CWP No 13 of 1990
WITH CIVIL APPEAL No 4457 of 1990
 DV Sehgal AK Goel Mrs Sheela Goel andKK Mohan for the Appellants
Shanti Bhushan SS Sharma RP Kapur and Sanjay Kapur for the Respondent
The Judgment of the Court was delivered by VERMA J
These appeals by special leave are disposed of by this common judgment since they involve common questions
Civil Appeal No 1774 of 1990 is against the judgment of the Delhi High Court while Civil Appeal No 4457 of 1990 arises out of a similar judgment Of the Punjab  Haryana High Court
The appellants in
both these appeals are aggrieved by the promotion policy ofthe respondent the State Bank of India contained in Annexure  A  dated 31101983 read with the Circular dated1391989 for promotion from the cadre of junior Management Grade 1 Rs 1175 2675to Middle Manage ment Grade II Rs 1825 2925
The policy provides for two channels for promotion namely the Merit Channel and the Seniority Channel
For filling vacancies by promotion from the cadre
of Junior Management Grade 1 to that of Middle Management Grade II 65
of the total Vacancies were re served for the Seniority Channel and the remaining 35 for the Merit Channel
The challenge in these appeals is to the filling by promotion of the vacancies through the Merit Channel
The criterion mentioned in the policy for the Merit Channel provides 40 per cent marks for written test 10 per cent marks for seniority 20 per cent marks for performance appraisal 20 percent marks for interview and the remaining per cent marks for passing the examination held by the Bankers  Institute called CAIIB
The procedure adopted for taking into account 772 the marks obtained in the written test alone for shortlist ingor screening instead of total of marks under all heads except interview forcalling a candidate for interview is challenged as arbitrary
It is contended that the marks under another heads amounting to a maximum of 80 per cent instead of the maximum of 40 per cent prescribed for the written test should be the proper criterion to call a candi date for interview in order to make a proper selection I on the basis of merit
It is urged on behalf of the appellants that by taking intoa ccount the marks of written test alone there is exclusion of other meritorious candidates whose aggregate including the marks obtaine dunder the other heads may exceed the corresponding aggregate of marks of candi dates obtaining higher marks in written test alone
On this basis the policy for filling vacancies from the Merit Chan nel by promotion is alleged to be arbitrary
This is the common grievance in both these appeals
An additional point urged in Civil Appeal No 1774 of 1990 alone is that unfair means were adopted by some candidates at some centres in a particular circle where written tests were held which has vitiated the result of the written test
On behalf of the respondent Bank all the relevant documents were produced to negative both these submissions
It was urged by learned counsel for the respondent that the provision for the Merit Channel for promotion was made in the policy to give accelerated promotion to the academically brilliant persons with the object of providing incentive to them and thereby improving the quality of personnel in the higher cadre
He pointed out that the policy of deciding merit on the basis of written test alone has been consist ently followed and the Circular dated 139
1989 was merely a clarification of the manner of preparation of the Select List to make the selection more objective and to yield better results by getting the most meritorious candidates from all circles
This mode of preparation of Select List was adopted in 1989 also to overcome the deficiencies point ed out in the earlier years
The object of choosing the most meritorious persons through this channel is better achieved by adopting the performance in the written test as the predominent factor for selection on the basis of merit
One of the attendant benefits achieved thereby is also to at tract more brilliant people into the Banking service with the prospects of accelerated promotion to the more meritori ous persofts
The entry point for officers by direct re cruitment in the State Bank of India being the JUnior Man agement Grade 1 the prospect of the very first promotion being accelerated for academically brilliant
persons pro vides greater incentive to the brilliant persons joining the service
This is the justification given for adopting the policy of reserving 35 per cent of 773 the promotional vacancies to the next higher cadre through Merit Channel
The object sought to be achieved in this manner and the making of such a provision to achieve the object of such a provision was rightly not assailed before us
The only
challenge was to the criterion of marks ob tained in the written test alone being the guiding factor to choose candidates who were to be called for interview
We heard both sides at length and also closely scruti nised the Bank s records relating to the formulation and implementation of the impugned promotion policy
Our conclu sion is that no infirmity rendering this policy arbitrary and therefore assailable on that ground is disclosed
Keeping in view the laudable object of attracting academi cally brilliant candidates into the Bank s service as offi cers by direct recruitment by giving incentive of accelerat ed promotion to the most meritorious amongst them who main tain a high standard of achievement is conducive to public interest and cannot be faulted
Of the serveral heads Under which the marks are divided for promotion to Merit Channel written test and interview are the only ones which depend on the current performance
The marks under the remaining three heads of seniority performance appraisal and CAIIB passing of examination held by Bank s Institute relate to past performance of the candidate which are matters of record
It is therefore the appraisal of the current performance by written test and interview which alone is the real part for a proper appraisal of the current performance of the candidate for the purpose of assessing his merit for promotion through the Merit Channel
In this situation if the marks obtained in the written test alone are taken into account for preparing the Select List to call candidates for an interview depending upon the number of vacancies avail able in Merit Channel the criterion adopted cannot be termed arbitrary
As earlier indicated the marks obtained for seniority performance appraisal and CAIIB are based on service record and not on appraisal of the candi date by a mode independent of service record for assessing the true current worth of the candidate
Since equal oppor tunity is available to all for competing through the Merit Channel in addition to the prospects_through the Seniority Channel the policy adopted cannot be treated as irrational discriminatory or arbitrary
No doubt there is always room for improvement and so also in the mode of implementation of this policy
The learned counsel for the respondents assured usthat the Bank is vigilant and active in making any im provement which is called for as a result of experience or suggestions from any quarter
The Bank s endeavour to make the assessment of merit as objective as possible is also indicated by its efforts in that direction
The record of 774 the Bank placed before us does satisfy us about the genuine ness and bona fides of the Bank s endeavour in this direc tion
It may also be indicated that the Circular dated 1391989 for preparation of the Select List which was applied to the examination held thereafter in 1989 was an exercise in the same direction
We are inclined to agree with this submission of the learned counsel for the respond ents
One of the arguments of the learned counsel for the appellants that this circular was applied retrospectively was not substantiated by the facts since preparation of the list according to this circular in the examination held in 1989 was made subsequent to the issuance of this circular and it was an exercise in improvement of the mode Of selec tion
We do not therefore find any merit in the submission on behalf of the appellants that the policy framed and the mode of its implementation for filling some of the promo tional posts through the Merit Channel is discriminatory or arbitrary
This contention is therefore rejected
We may however add that if there be any suggestion for a further improvement in the mode of implementation of this policy the same can be given to the management of the respondent Bank and we have no doubt as assured by Shri Shanti Bhushan the learned counsel for the respondent Bank that the worth while suggestions if any would be adopted by the Bank for future examinations
The only other point which is confined to Civil Appeal No 1774 of 1990 is the allegation of unfair means adopted at some centres where written test was held in the Delhi Circle
We have scrutinised all the documents including a Report dated 191989 of Mr VD Bhog on which strong reliance was placed on behalf of the appellants
We are satisfied that no ground for any interference on this basis is made out
The relevant records disclosed that an honest attempt was made on the part of the management of the Bank to examine all the points raised in the Report of Mr VD Bhog and otherwise and in cases where an element of use of unfair means was found necessary action was taken
The Report dated 7121989 by the General Manager Operations is relevant in this context and the materials placed before us show that necessary action was taken by the Bank to exclude the possibility of the results being affected by use of unfair means by any candidate and this was done even before filing of the writ petition by the appellants
The ultimate results of the candidates at these centres who appeared for written test at these centres also assures us that neither was there any mass copying at these centres nor is the final result shown to have been influenced by use of unfair means by any candidate
It is also disclosed by the records that the complaint which led to the report by
775 Shri VD Bhog was made by twenty seven candidates out of whom twenty four had obtained high marks themselves and
out of them twelve were actually selected by inclusion in the final list of selected candidates
This additional ground urged on behalf of the appellants in Civil Appeal No 1774 of 1990 also cannot be accepted
Consequently both these appeals fail and are dismissed
No costs
VPR Appeals dis missed


Summary:
Appellant s daughter was married to respondent No 2 on 15121984
She died on 1381986
The appellant filed a criminal comp 
laint against the respondents viz daugh ter s husband and his relatives for an offence under section 498 A triable by a Magistrate of First Class read with section 34 of the Indian Penal Code 1860 alleging that his daughter s death was unnatural resulting from torture by her husband and his relatives
By Act No 43 of 1986 the Indian Penal Code was amended and Section 304 B offence of dowry death was inserted in the Code wef
19111986
Since the newly inserted offence of dowry death was triable
by a Court of Session the appellant flied an application before the Magistrate for committing the case to the Caurt of Session for trial of offence under section 304 B The Magistrate dismissed his application by holding that the amendment being prospective was inapplicable to the case because the death had occurred prior to the amendment
Thereafter the appellant filed an application in the High Court for a direction to Commit the case of dowry death to the Court of Session
The High Court also dismissed his application by holding that since the offence was committed prior to the date of insertion of section 813 304 B the section was not applicable to the case
In appeal to this Court on the question whether section 304 B of the Indian Penal Code was applicable to a case of dowry death where the death has occurred prior to the insertion of Section 304 B it was contended on behalf of the appellant that section 304 B of the Indian Penal Code does not create a new offence and contains merely a rule of evidence
Dismissing the appeal this Court HELD 1
The offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the code with effect from 19111986 when Act No 43 of 1986 came into force The said offence is punisha ble with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session
The corresponding amendments made by Act No 43 of 1986 in the Code of Criminal Procedure and the relate to the trial and proof of the offence
Section 498 A inserted in the Indian Penal Code by the Criminal Law Second Amendment Act 1983 is an offence triable by a Magistrate of the First Class and is punishable with impris onment for a term which may extend to three years in addi tion to fine
The offence of dowry death punishable under section 304 B provides for a more stringent offence than section 498 A Section 304 is a substantive provision creat ing a new offence and not merely a provision effecting a change in procedure for trial of a pre existing substanative offence
The rule of evidence to prove the offence of dowry death is contained in section 113 B of the providing for presumption as to dowry death which was a simultaneous amendment made in the for proving the offence of dowery death
The fact that the was so amended simul taneously with the insertion of section 304 B in the Indian Penal code by the same Amendment Act is another pointer in this direction
There fore it cannot be held that section 304 B does not create a new offence and contains merely a rule of evidence
818D F 819C D 2
The respondents are being tried in the Court of Magis trate of the
First Class for the offence punishable under section 498 A which was in the statute book on the date of death of Appellant s daughter Their trial and punishment for the offence of dowry death provided in section 304 B of the Indian Penal Code with the minimum sentence of seven years  imprisonment for an act done by them prior to creation of the new offence of dowry death would clearly deny to them the protection afforded by clause 1 of Article 20 of the Constitution
Accord ingly the view taken by the High Court that the respondents cannot be 814 tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent to the commission of the offence attributed to the respondents does not suffer from any infirmity
818E G 819E