HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.No.30914 of 1997 Dated day of December, 2009 Between: G.V.Prasada Sastry .. Petitioner And The Managing Director, State Bank of Hyderabad, Gunfoundry, Head Office, Hyderabad .. Respondent O R D E R: This writ petition has been instituted by an Officer of the State Bank of Hyderabad questioning the correctness of the procedure adopted by the State Bank of Hyderabad (hereinafter referred to as “the Bank”) in the matter of promotions to Senior Management Grade (SMG) Scale-V posts. The writ petitioner asserts that he had been promoted after having rendered long years of satisfactory service to the Bank to SMG Scale-IV post with effect from 1.8.1985. The grievance nurtured by him commences from the selection procedure initiated by the Bank pursuant to their communication dated 7.2.1995 wherein it was declared that the Bank decided to initiate the process of promotions from SMG Scale IV to SMG Scale V for filling up of 7 posts of Assistant General Managers. It is not in dispute that the writ petitioner is one amongst those who have become eligible for consideration for such promotions. The grievance of the writ petitioner is that (i) Unduly large size of eligible candidates is drawn for considering their claims for promotion (ii) The Bank had prescribed a procedure by which as many as 50% of the marks are set apart for performance appraisal and the balance of 50% of marks for interview and there are no guidelines prescribed by the Bank for regulating this exercise (iii) More number of candidates have been promoted than notified when selection process was initiated, thus leaving scope for certain candidates, in whom the Bank is interested to be so promoted. Any process of promotions has got to be carried out in terms of Regulation 17 of the Officer Employees Regulations of the Bank. The guidelines, if any, have got to be notified to prevent any last minute inclusion of new criterion or preferences. Before finalizing the promotion policy concerning all Grades and Scales of Officers in terms of Regulation 17 of the Bank (Officer Services Regulations) 1979, the Bank’s Executive Committee, at its meeting on 20.1.1982, approved an adhoc promotion policy regulating promotions from SMG Scale IV to SMG Scale V and Middle Management Grade Scale III to SMG Scale IV. This adhoc promotion policy was brought out by way of a Circular dated 17.1.1983 which sets out that all Officers in SMG Scale IV who have completed five years of service including service in the erstwhile officers “A” Grade will be considered and that promotions will be made on the basis of performance appraisal and interview. This promotion policy had been altered through another Circular dated 27.1.1983. That was further altered by another Circular dated 9.3.1987. Through this Circular, the Executive Committee had approved the size of the zone of eligible officers to be generally four times the number of vacancies to be filled in. Again, through another Circular, dated 28.3.1989, the Board had effected some more changes to their promotion policy and the significant change is that the eligibility criteria for promotion from SMG Scale IV to SMG Scale V is three years of satisfactory service and most significantly it has been pointed out that the number of persons to be considered for promotion from one scale to another normally to be restricted to three to four times the number of posts for which the promotions are being considered. Of course, power was retained with the Board of Directors to relax this criteria in exceptional circumstances after recording reasons therefor. Thus, the size of the zone of consideration for effecting promotions from one scale to another was sought to be restricted to three to four times the number of posts for which the promotions are sought to be considered. By another Circular dated 27.5.1988, the Board of Directors of the Bank approved the grievance redressal procedure for such of those Officers, who feel aggrieved by their non-selection in the matter of promotions by way of submission of representation to the Directors’ Committee within a period of three months from the date of announcement of the promotions and that the representation would be considered not later than six months from the day when the same was received. Therefore, the Bank had put in place specific redressal grievance mechanism for those who feel aggrieved of their non- selection. It is significant to notice that the Executive Committee of the Bank at its meeting held on 4.10.1983 approved the promotion policy for considering promotions to SMG Scale V and Top Executive Grade Scale VI. While dealing with the issue of promotions from SMG Scale IV to SMG Scale V, the decision taken appears to be that all Officers in SMG Scale IV who have completed at least one year of service in that scale and also put in five years of service both in SMG Scale IV and erstwhile “A” Grade cadre are to be considered and promotions are to be made on the basis of their performance appraisal and potential for handling higher assignments assessed by the interview process. It is also set out therein that the marks obtained by an Officer in the interview be added to the marks obtained by him in the performance appraisal in the ratio of 50:50 for the purpose of computing and preparing the merit list. The guidelines to be followed and adopted by the Departmental Promotional Committee has been detailed in the annexure to the Memorandum published on 21.11.1983. The salient features for the performance appraisal of the Officer concerned has been listed out based on the following parameters. i) Positions held ii) Summary of Confidential Reports iii) Managing Director’s Appraisal iv) Managerial Ability v) Assignment Appraisal Reports Thus, the various parameters, which go in to the exercise of evaluation of the performance appraisal of the Officers falling within the zone of consideration have been spelt out in great detail. No room for exercise of any discretion in the matter of performance appraisal is thus left for. In fact, the marks to be awarded on various components, has also been spelt out in this annexure to the Notification dated 21.11.1983. However, the fact remains that a fairly very high percentage of marks have been left for the interview component. At my request, the learned standing counsel for the Bank, Sri A.Suryanarayana has placed before me the marks awarded by the Selection Committee to each of those officers who have been interviewed. For filling seven vacancies as notified on 7.2.1995, out of 33 candidates, who have comprised the zone of consideration, a total of seven Officers have abstained from attending the interview. The name of the petitioner figures at serial No.14 of the list of Officers arranged in the order of seniority. A perusal of this list leaves an impression in the mind that the Selection Committee appears to have proceeded with a rule of thumb approach. There are seven candidates, who have been selected from the candidates who have been interviewed. All the seven selected candidates have been awarded either 80% or 75% of marks in the interview. Those who have not been selected have been awarded either 60% or 65% of marks. In either of these two groups, there wasn’t any variation of marks such as 74% or 76% or 79% or 81% in the case of selected category and 59% or 61% or 64% or 66% in the case of non-selected group of candidates. This pattern of awarding exactly 75% or 80% of marks in favour of selected candidates and exactly 60% or 65% of marks for those who are not selected leaves feeling in the mind that the Selection Committee has carried out its exercise either with great accuracy or with an element of pre-judgment. While it is true that in the matter of promotions to higher category of posts, setting apart fairly a high percentage of marks for the interview component is not perceived or construed as totally bad, but nonetheless the scope of subjectivity in evaluation of the merit of the candidates should completely be ruled out. This is one reason why the Courts have been consistently sounding the alarm bells, so that the appointing authorities try to evolve a better system of evaluation of merit of the competing candidates than solely depending upon the component of interview alone. As indicated supra, the dividing line pursued in the interview appears to be a well marked out one and the list of those selected were awarded a minimum of 75% of marks and the highest marks awarded to a non-selected candidate stopped at 65%, thus leaving the performance appraisal component not to play a very decisive role in the matter of selection of candidates. There is yet another infirmity. As against seven vacancies notified for promotion in the year 1995 by the Bank, while the Selection Committee selected seven candidates it had also wait-listed three candidates by names Sri K.Suryanarayana Murthy, Sri S.Viswapathi and Sri D.Venkat Rao. There is yet another candidate by name Mohan B. Udiavar, whose selection was ordered to be confined to sealed cover. The respondent-Bank accepting the selections, had promoted seven Officers, who have been selected by the Selection Committee through their Proceedings dated 18.2.1995 and subsequently it had also promoted Sri D.Venkat Rao on 8.4.1995 and Sri S.Viswapathi on 16.5.1995. Nowhere the Bank had explained as to the power of the Selection Committee to prepare a wait-list of three more candidates nor did the Bank explain the reasons why Mohan B. Udiavar’s result has been confined to sealed cover and as to what had happened to it’s fate till his promotion subsequently. Adopting the sealed cover procedure at the time of ordering promotions by the employers has been a well recognized mode. All Officers, who are otherwise eligible will be subjected to selection process and if any disciplinary proceedings/criminal cases are pending against them, their selection for further promotions will be confined to the sealed cover awaiting for the final result of the disciplinary proceedings/criminal cases. Thus, the Officer concerned will earn his promotion only at the end of the disciplinary proceedings or the criminal case as the case may be. In case the officer in the sealed cover is promoted, the last of those who made the grade will have to yield place for him eventually. That had not happened. The net result is as against seven vacancies notified, eight candidates were selected by the Bank, one of them has been confined to sealed cover. Further, the Bank also kept three more names for eventual promotees in wait-list. The procedure adopted by the Bank in this regard is wholly unsatisfactory and is clearly contrary to the promotion policy. If any vacancies are anticipated to arise shortly by the Bank, they should have formed part of the notification issued by it on 7.2.1995. If only the Bank had also notified the likely vacancies in the total number of vacancies proposed to be filled in, the size of the zone of consideration would have varied greatly. Quite surprisingly, when the selections for 1996 vacancies are finalized, the case of Mohan B. Udiavar was considered along with several other candidates, but there is no mention made as to the fate of the sealed cover in which his name was confined for the previous year. Similarly, a perusal of the selections for the year 1997 reveals that as many as 42 candidates have been subjected to the process of selection. Whereas, the Bank in their additional counter affidavit in paragraph 13 contended that there are only 6 vacancies available for the year 1997. Interestingly, the six candidates selected at 1997 selection process have been promoted through the communication dated 22.11.1997. Subsequently, while considering the representations submitted as part of the grievance redressal mechanism, two more Officers by name K.Sanjeeva Reddy and Kasturi Nageswara Rao were promoted through a communication dated 10.9.1998, with effect from 1.12.1997, i.e., with effect from the same date from which the first batch of six Officers were accorded promotions. Thus, the net result is 8 Officers stood promoted to SMG Scale V with effect from 1.12.1997 as against six vacancies for which the selection process was notified by the Bank in November, 1997. The selection processes carried out by the Bank as indicated supra leave much to be desired. The principle that the selection process has got to be confined to the exact number as notified has been breached consistently by the Bank. The principle relating to the fixation of the zone of consideration which was required not to exceed three or four times the number of vacancies sought to be filled in has been breached by the Bank. Unfortunately, the writ petitioner has mixed up all his grievance relating to his non-selection for the years, 1995, 1996 and 1997 into a single basket and filed the present writ petition. Each one of these non-selections, offers a distinct and separate cause of action. Though the writ petitioner has instituted the writ petition on 20.11.1997, he has not chosen to implead the candidates, who have been selected and got promoted to SMG Scale V post prior thereto as party respondents. Since not one of those candidates, who were selected, have been impleaded and in the absence of those candidates whose rights are likely to be adversely affected, the writ petition deserves to be dismissed only on that ground. However, it would be appropriate for the Bank to ensure that the maladies of the nature pointed out supra are not repeated. The respondent-Bank vainly attempted to offer a defence, that, since the W.P.No.25426 of 1996 filed by the writ petitioner earlier, was dismissed by this Court on 12.7.2006 on the ground that it became infructuous, and hence the cause espoused herein is hit by the principle of res judicata. It is worthwhile to point out that the grievance nurtured by the writ petitioner in W.P.No.25426 of 1996 certainly concerns the validity of the promotion policy pursued by the Bank and the resultant non-selection of the writ petitioner at the 1997 selections. In the present writ petition, the petitioner raised his grievance with regard to his non-selection for 1995-96 selections and the improper procedure adopted by the Bank at 1997 selections. The causes of action in both the cases being different, the principles of res judicata are not attracted in the instant case. I, therefore, do no find any merit in the plea canvassed by the Bank in this regard. Similarly, the Bank also contended that since the writ petitioner retired from service on attaining the age of super annuation on 31.5.1999, the cause in the present writ petition has become infructuous and for that reason the writ petition has to be dismissed. This contention also lacks merit, for, the eventual retirement of the writ petitioner from service will only impede the right of the writ petitioner to actually discharge the functions attached to the promotional post namely SMG Scale V, but nonetheless if he can successfully establish his rights, including breach of the fundamental rights guaranteed to him or procedural impropriety of the Bank in the selection process, the fictional or notional promotion can be ordered consequently. The terminal benefits payable to the writ petitioner would also upwardly vary. Therefore, retirement from service by the writ petitioner during the pendency of this writ petition will not render the cause in this writ petition redundant for adjudication. Therefore, I reject this contention of the Bank also. However, for the misjoinder of causes of action and non-joinder of those persons who are likely to be effected adversely inasmuch as their selections and promotions ordered long years back will be upset, the present writ petition is dismissed, but however without costs. __________________________ NOOTY RAMAMOHANA RAO, J 24th December, 2009 Bcj/knk