C.W.P. No.7681 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.7681 of 2001 Date of Decision: 04.08.2011 Parmod Kumar and others ....Petitioners Versus Govt. of India and others ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. A.S. Cheema, Advocate for the petitioners. Mr. G.S. Bajwa, Advocate for the respondents-Bank. None for the other respondents. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. The petitioners herein, who are Junior Clerk-cum-Cashier, have filed the present writ petition for quashing of Circular No.4/2000 dated 12.09.2000 issued by respondent No.4 for filling up of 11 promotional vacancies from Clerical Cadre to Officer Cadre (JMG-Scale I) (Annexure P-2) on the basis of 1988 Rules with a further prayer to fill up the posts from Clerical Cadre to Officer Cadre as per notification dated 29.07.1998. The facts, in short, are that the petitioners, as well as, the private respondents were Junior Clerk-cum-Cashier. The Government of India-respondent No.1, for the first time, framed the Rules called the C.W.P. No.7681 of 2001 2 Regional Rural Banks (Appointment and Promotion of Officers and other employees) Rules, 1988, whereby, the promotion to the post of Field Supervisors and source of recruitment was fifty percent by direct recruitment and fifty percent by promotion from amongst confirmed Senior and Junior Clerk-cum-typist or stenographer or steno-typist which are as under :- “5. Field Supervisors : (a) Source of recruitment : (i) Fifty percent by direct recruitment from the open market. (ii) Fifty percent by promotion from amongst confirmed Senior and Junior Clerk-cum-typist or stenographer or steno-typist or stenographer or steno typist on the basis of seniority-cum-merit.” Similarly, the next step of promotion is to the Officers Cadre, out of which, fifty percent was by direct recruitment from open market and fifty percent by promotion from amongst confirmed field Supervisors, which is as under :- “6. Officers (a) Source of recruitment : (i) Fifty percent by direct recruitment from open market. (ii) Fifty percent by promotion from amongst confirmed Field Supervisors on the principal of seniority-cum-merit.” The Government of India abolished the intermediary posts i.e. Senior Clerk-cum-Cashiers, as well as, the Field Supervisors, respectively w.e.f. 01.09.1987. The respondent No.2-NABARD vide letter dated 08.04.1993, placed on record as Annexure P-3, issued clarification that as the intermediary posts i.e. Senior Clerk-cum-Cashiers and Field Supervisors have been abolished w.e.f. 01.09.1987, no promotion can be effected from Clerical Cadre to the Officer Cadre. Meanwhile, respondent No.1, vide its notification dated 29.07.1998 promulgated new policy in C.W.P. No.7681 of 2001 3 supersession of the earlier Rules 1988 regarding appointment and promotion. As per relevant extracts of the 1998 Rules placed on record as Annexure P-4, promotion to the post of Officer by promotion was on the basis of performance in the written test, interview and five years performance appraisal as under :- “(i) Number of the candidates All eligible candidates be considered for promotion. shall be considered for promotion. (ii) Selection process for The selection shall be promotees on the basis of performance in the written test, interview and five years performance appraisal.” Respondent no.4, accordingly, conducted the test as per 1998 Rules. The petitioners, as well as, the private respondents participated in the written test. Except respondent No.7, none of the respondents cleared the written test, whereas, all the petitioners passed the written test. In stead of promoting the petitioners, the respondent No.4 issued Circular no.4/2000 dated 12.09.2000 for filling up of eleven promotional vacancies from Clerical Cadre under the old promotion policy on the ground that the vacancies which occurred while the old policy was operative has to be filled up under the policy existing then. While challenging the impugned action of the respondents to fill up eleven vacancies as per 1988 policy, learned counsel for the petitioners has raised two fold arguments : (i) that the posts of Senior Clerk-cum-Cashiers, as well as, the Field Supervisors have been abolished. There is no cadre left from which the promotion could be made as per policy 1988. (ii) the petitioners, as well as, the respondents had participated in the written test knowing fully well that the vacancies were required to be filled up under the 1998 C.W.P. No.7681 of 2001 4 Rules and not under the 1988 Rules. Written statement on behalf of respondents No.3 and 4 has been filed. Learned counsel for the respondents while defending the Circular submitted that as per promotion rules of 1988 and 1998, the Board of Directors of the Regional Rural Banks have to consult their respective Sponsor Banks in determining the number of vacancies in each post keeping in view the guidelines issued by Central Government from time to time. Respondent no.1 i.e the Central Government clarified vide its letter (Annexure P-5) that the revised rules viz the Regional Rural Bank (Appointment and Promotion of Officers and other employees Rules) 1998 were notified on 29.07.1998 and become effective from this date. Promotion in respect of the vacancies which existed prior to the publication of these rules would be effected under the rules which existed at the relevant time. In view of the aforesaid guidelines and the clarification given by Government of India (Annexure P-5), Sponsor Bank vide its letter dated 25.05.2000 assessed for respondent No.4 the vacancy position for promotions from Clerical Cadre to Officer Cadre Scale I. Accordingly, respondent No.4 initiated promotion process for promotion from Clerical Cadre to Officer Cadre for eleven vacancies to be filled in as per old promotion policy, 1988 and seven vacancies to be filled in as per new promotion policy, 1998. Sponsor Bank vide its letter dated 05.03.2001 to respondent Bank advised that they have examined the matter further and found the promotion process in promoting the Clerks to Officer under the old Promotion Policy in order and direct it to proceed further. Hence the promotions made are in order and, therefore, the writ petition is liable to be dismissed on this ground alone. It was also submitted that the respondents were senior most Clerks. Since the post of Field Supervisor was abolished, they stood first promoted to the post of JMG-Scale 1 and, thereafter, as officers under the old policy. The post of JMG-Scale 1 is equal to the C.W.P. No.7681 of 2001 5 post of Field Officer. The post of Field Supervisor was designated as JMG-Scale 1. They being the senior most JMGs, were promoted to the post of Officer under the old policy. Heard, The private respondents stand served. Despite that, neither anyone has come forward to contest the petition nor any reply has been filed. At the time of issuing of notice of motion on 25.05.2000, the Division Bench of this Court was pleased to pass an interim order that promotion will be subject to any order that may be passed in the writ petition. After hearing learned counsel for the parties, the following questions arise ; (i) whether the eleven vacancies arose prior to the amendment of Rules 1987 or thereafter. (ii)Whether the vacancies were required to be filled under the 1988 Rules or 1998 Rules. (iii)Whether the private respondents were eligible under the 1988 Rules or not. The vacancies, in the present case, were identified for the first time in May 2000. This is evident from Annexure R-2 placed on record by respondents themselves. Respondent no.2 vide letter dated 01.09.1999 with its Reference no. NB.IDD.RRCBD/1339/316/(GEN)/1999-2000 while clarifying the said issue by the RRB stated in para (ii) as under :- “(ii) In accordance with the above, if the vacancies have been identified and created in the earlier years then all such vacancies would necessarily be filled up by adopting the Recruitment and Promotion Rules of 1988. However, where an RRB has not initiated any exercise in the past for identifying such vacancies and is new C.W.P. No.7681 of 2001 6 proceeding to create vacancies for all the yester years, the move cannot be deemed as in order, at this juncture. Hence, filling up of such vacancies now being identified has to be done only by adoption of the New Rules notified in the Government of India Gazette dated 29.07.1998.” Thus, there is nothing on record to specify that these vacancies arose prior to the year 1987. However, even if it is accepted for the sake of argument that the said vacancies arose prior to coming of new Rules 1998, the same cannot be filled up under the old Rules of 1988 on account of the fact that ; (a) admittedly under the 1988 Rules, promotion to the post from Clerks to Officers was from amongst confirmed Field Supervisors on the principal of seniority-cum-merit. (b) admittedly, the post of filed Supervisor and Senior Clerk-cum-Cashiers have been abolished w.ef. 01.09.1987. No Field Supervisor was available at the time when the vacancies arose and nor uptil the time when these vacancies were required to be filled up in the year 2000. Thus, there was no feeder post or cadre left from which the promotion could be made as per Policy 1988 which mean that no eligible candidate was available under the 1988 policy. The argument of learned counsel for the respondents that the post of Field Supervisor was re-designated as JMG-Scale 1, cannot be sustained. No such stand has been taken in the written statement nor any order has been placed on record to show that the post of Field Supervisor was re-designated as JMG-Scale 1. There is no order showing that the private respondents were first promoted to the post of JMG-Scale 1 C.W.P. No.7681 of 2001 7 i.e equivalent to Field Supervisor before promoting them to the post of Officers. No document has been placed on record showing that the private respondents stood promoted to the post equivalent to that of Field Officer and it was only thereafter that they were further promoted to the post of Officers requiring promotion from amongst confirmed Field Supervisors. It is not understood as to how the respondents were granted this promotion in spite of the clear cut direction issued vide Circular dated 08.04.1993 placed on record as Annexure P-3 that no promotion can be effected from Clerical Cadre to Officer Cadre in view of the abolition of intermediary posts i.e Senior Clerk-cum-Cashiers and Field Supervisors. The same is reproduced as under :- “ As the Government of India vide their circular dated 22 February abolished the intermediary posts viz. SCCs and FSs retrospectively from 1 September 1987, no promotion can be effected from Clerical Cadre to the Officer Cadre. To sum up the position : (a) no promotion can be effected from sub- ordinate to clerical cadre. (b) no promotion can be effected from clerical cadre to officer cadre. (c) Promotion can be effected from officers Scale I to Area Manager/Sr. Manager since equated with Officers Scale II.” Thus, even if it is concluded that the said vacancies arose prior to 1988 and, therefore, should have been filed under the 1988 Rules, the fact remains that no candidate eligible under the said Rules was available. It is, therefore, clear that promotion to Officers' Cadre under 1988 Rules could be made only from the cadre of confirmed Field Supervisors. Respondents no.5 to 15 were never promoted as Field Supervisors. In fact, there was no Field Supervisor. Thus, the question of filling up of eleven vacancies under the old Rule, 1988 did not arise. The Department had no choice but to fill up the vacancies as C.W.P. No.7681 of 2001 8 per promotion Rule 1998 for which written test was duly held. It was, therefore, on this account, a written test was held for filling up the posts through promotion in accordance with 1998 policy. The petitioners and respondents appeared in the written test knowing fully well that their promotion was under the 1998 policy. The petitioners cleared the written test way back. In spite of the same, they have been deprived of the promotion. In view of the above, the promotion of respondents No.5 to 15 is set aside being illegal and against the Rules applicable. Accordingly, the respondents are directed to consider the promotion of the petitioners from Clerical Cadre to Officer Cadre with effect from the date the petitioners became eligible i.e from the date of clearing the written test held on 22.10.2000 in terms of notification dated 29.07.1998. Allowed in the aforesaid terms. (NIRMALJIT KAUR) 04.08.2011 JUDGE gurpreet