IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 OP.No. 20198 of 2000(D) ----------------------- PETITIONER(S): --------------- ELIZABETH NINAN, M.M.-II, STATE BANK OF INDIA, ARTHINKAL BRANCH. BY ADV. SMT.V.P.SEEMANDINI (SR.) SMT.BINEETHA GOPAKUMAR RESPONDENT(S): --------------- 1. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, CIRCLE TOP HOUSE, P.B.NO.187, 21 RAJAJI ROAD, MADRAS-1. 2. ASSISTANT GENERAL MANAGER, SBI, ZONAL OFFICE, TRIVANDRUM. ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23.9.2008, THE COURT ON 7.10.2008 DELIVERED THE FOLLOWING: O.P.NO.20198/00. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CERTIFICATE DTD.18.10.99. P2. COPY OF THE APPLICATION DTD.30.3.00. P3. COPY OF THE LETTER DTD.28.4.00. P4. COPY OF THE LETTER DTD.26.2.2000. P5. COPY OF THE LETTER DTD.30.6.00. P6. COPY OF THE LETTER DTD.10.7.00. P7. COPY OF THE REPRESENTATION DTD.20.6.00. P8. COPY OF THE CERTIFICATE BY DIST. OFFICER, ALAPPUZHA. P9. COPY OF THE CIRCULAR DATED 25.6.99. P10. COPY OF THE LETTER DTD.23.7.99 BY ZONAL OFFICE. P11. COPY OF THE REPRESENTATION DTD.25.10.99. P12. COPY OF THE RELEVANT PAGES OF CENSUS HAND BOOK OF ALAPPUZHA DIST. P13. COPY OF THE -DO- PALAKKAD DIST. P14. COPY OF THE LETTER DTD.31.10.00 BY ASST.GENERAL MANAGER, SBI. P15. COPY OF THE LETTER DTD.23.12.00 -DO- P16. COPY OF THE LETTER. P17. COPY OF THE LETTER DTD.31.1.2001 BY THE BRANCH MANAGER. RESPONDENTS' EXHIBITS: R2(A) COPY OF THE CIRCULAR DTD.14.11.98. (B) COPY OF THE LETTER DTD.19.2.99 BY THE ASST. GENERAL MANAGER, SBI, PALLICKAL. (C) COPY OF THE SUPREME COURT JUDGEMENT CIVIL APPEAL NO.42881/1999. (D) COPY OF THE LETTER DTD.4.12.03 OF THE RESERVE BANK OF INDIA. (E) COPY OF THE LETTER DTD.11.3.04 BY THE RESERVE BANK OF INDIA. (F) COPY OF THE GUIDELINES BY THE GOVT. OF INDIA. (G) COPY OF THE CIRCULAR DTD.22.5.1987. (H) COPY OF THE CIRCULAR DTD.9.4.1991. (I) COPY OF THE CIRCULAR DTD.6.8.1997. ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No.20198 of 2000 ================== Dated this the 7 th day of October, 2008 J U D G M E N T An officer of the State Bank of India has filed this original petition challenging the action of the Bank in refusing to allow her to retire voluntarily on the ground that she has not completed the mandatory service of 2 years in a rural branch and she has not agreed for withdrawal of the promotions granted to her on the condition of undergoing 2 years' rural service, which was a condition for accepting request for voluntary retirement as per the promotion policy applicable to the petitioner. After filing of the original petition, as per order in C.M.P.No.33798/2000 she was allowed to retire voluntarily, leaving the rate of retirement benefits payable to her to be determined in the original petition. The facts necessary for disposal of the original petition may be summarised as under: 2. The petitioner joined the service of the erstwhile Bank of Cochin which was amalgamated with the State Bank of India. On such amalgamation the petitioner was given placement as an officer in the Junior Management Grade Scale I of the State Bank o.p.20198/00 2 of India with effect from 1.9.1985. She was promoted to Middle Management Grade Scale II with effect from 1.11.1993 and to Middle Management Grade Scale III with effect from 1.11.1996. While working so, by Ext.P2 letter dated 28.3.2000, with effect from 1.7.2000, she requested for permission to retire voluntarily from service. Her application was rejected by Ext.P5 dated 30.6.2000, on the ground that she had not completed 2 years of rural service which is a condition as per Ext.P9 promotion policy for any officer who has obtained promotion without completing two years of rural service, or agreeing to forgo the promotions obtained by him/her. Since the petitioner did not report for duty after 30.6.2000, by Ext.P6 dated 10.7.2000, she was informed that she is unauthorisedly absent from 1.7.2000 and was advised to report for duty within 3 days. It is at that time the petitioner has filed this original petition inter alia on the ground that she has actually completed 2 years of rural service and therefore, the condition in Ext.P9 relied upon by the Bank is not applicable to her. Since the Bank's action was on the basis of Ext.P9 promotion policy, alternatively she challenges the validity of the relevant clauses therein also. She seeks the following reliefs in the original o.p.20198/00 3 petition: “i) to issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P5 and P6 letters issued by the respondents as violating the petitioner's right under Article 14 of the Constitution. ii) to issue a writ of mandamus direction or other appropriate writ quashing clause III (a & g) and Clause IV(b) of Ext.P9 circular dated 25.6.99 as violating Article 311 of the Constitution, as unreasonable. iii) to issue a writ of mandamus directing the respondents to sanction voluntary retirement to the petitioner with immediate effect.” 3. In C.M.P.No.33798/2000 filed along with the original petition, this Court passed the following order on 27.10.2000. “The petitioner shall be allowed to voluntarily retire from service with effect from 31.10.2000. What will be the rate of retirement benefits payable to her shall be dependant upon the final judgment in the O.P. Until then whatever retirement benefits admitted by the respondent shall be paid to her at any rate within 3 months from 1.11.2000” Pursuant to that order the petitioner was allowed to retire from service and she is being paid retirement benefits as payable to an officer in the Junior Management Grade Scale I. Therefore, what I am called upon to decide now is only as to what is the rate of retirement benefits to which the petitioner is legally entitled, for which I have also to decide whether the petitioner is entitled to keep the benefits of the promotions granted to her before her retirement. o.p.20198/00 4 4. The petitioner contends that she had actually completed 2 years of rural service, since she had worked from July 93 to June 95 in Venmony Branch, from July 95 to June 96 in Edathua Branch, June 96 to December 99 in Pallickal Branch and from January 2000 onwards at Arthunkal branch which are, according to her, rural branches. She also submits that clauses III (a), III(b) and IV(b) of Ext.P9 circular dated 25.6.99 are arbitrary, unreasonable and unconstitutional since the same deprives her of the service benefits due to her on promotion and are violative of Article 311 of the Constitution of India. 5. I shall first deal with the challenge against clauses III(a), III(b) and IV(b) of Ext.P9. They read as under: III) In view of the foregoing and the affidavit filed in the Supreme Court by the Bank that the concerned officers (promoted to MMG Scale III) shall be sent for R/SU assignments and till such officers complete the said R/SU assignments their promotion is to be treated as ad hoc, it has been decided by the Executive Committee of the Central Board at its meeting held on the 3rd June, 1999, to proceed in the matter as under;- a) If an officer is unable to complete the mandatory R/SU assignment for any reason attributable to him/her, his/her promotion will have to be withdrawn and he/she will not be permitted to officiate in higher grade(s). This withdrawal can go back to two/three grades also i.e., to the grade in which the officer was when he/she gave the undertaking for completing the mandatory assignment. b) An officer, not willing to go for R/SU assignment due to changed circumstances, will make a request in writing o.p.20198/00 5 giving the reasons for withdrawal of promotion. In case no request is made in writing by the officer and he/she doesn't go for R/SU assignment, his/her promotion will be withdrawn as it was subject to the completion of the R/SU assignment, in terms of his/her undertaking. IV) In view of what has been stated above the competent authority would first issue the transfer order of an officer for his/her posting at a rural/semi-urban branch, as the case may be, if the same has already not been issued by the Bank. In case of an officer who is not willing to go for R/SU assignment and makes a request in writing for withdrawal n of promotion or who does not make a request in writing for withdrawal of promotion but doesn't go for R/SU assignment, the promotion is to be withdrawn in terms of his undertaking and it is to be made clear to him/her at the time of withdrawal of promotion that:- xxx xxx xxx xxx b) It is the right of the Bank to recover all the benefits conferred upon him/her for the higher posts viz., higher salary, allowance and other benefits drawn by him/her and an officer may be ready to surrender and give up all benefits which he/she has enjoyed during the period. However, if the Bank accedes to the request, as a special case, it is purely the discretion of the bank to recover the same or otherwise. I do not have to delve deep into this question, since the validity of the original orders based on which Ext.P9 was issued was the subject matter of a decision of the Supreme Court of India in State Bank of India v. Kashinath Kher (AIR 1996 SC 1328). The requirement of minimum 2 years' rural service as an eligibility condition for promotion from Junior Management Grade Scale I to Middle Management Grade Scale II and minimum 3 years of service in a rural and/or semi-urban branch including 2 o.p.20198/00 6 years rural service as officer JMG Scale I for promotion to Middle Management Grade Scale III were envisaged in the memorandum dated March 21, 1990. This stipulation was made as per the Government of India guidelines and was made applicable to all promotions with effect from 1988 onwards. In accordance with those guidelines, officers eligible for promotion were included in two lists A and B, list A consisting of officers who have satisfied the eligibility criteria and list B consisting of officers who are yet to complete the mandatory minimum service. Officers in List A were to be given promotion as soon as promotion was due to them and officers in List B were to be promoted as and when they complete the mandatory service giving seniority below their immediate senior in MMGS II. This action was challenged by some officers as violative of Article 14, which challenge found favour with the Madhya Pradesh High Court. On appeal by the Bank, the Supreme Court, in the above decision, held thus in paragraphs 10, 11 and 12: '10. Having considered the respective contentions, the question arises whether the action taken by the appellant in making the officers who have not completed the required service of the line assignment and rural/semi- urban service and considering their case, found them fit and placed them in list B is violative of Article 14? We find that the stand taken by the Bank appears to be just and fair on the facts of the case. It would be seen that from 1986 onwards no promotions have o.p.20198/00 7 been made. Despite directions issued in 1986 as one time measure directing all the circles to post the officers to line assignment and for rural/semi urban assignment from 1989, no steps have been taken at the circle level to comply with the directions given by the board and the Executive Committee. Consequentially, officers, who are otherwise eligible and entitled to be considered were made ineligible for no fault of theirs. Under those circumstances, it necessitated to relieve hardship to such officers due to the inaction or skillful manoeuvre at circle level. Fortuitous circumstances of some officers completed the criteria would be a ground to steal a march over officers who are otherwise eligible and they cannot be made to suffer injustice, denial of their legitimate expectation to consider their cases fro promotion would be unjust and unfair. It is true, as rightly contended by Ms. Nisha, that the criteria being conditions of service cannot be relaxed. Service conditions being essential conditions cannot be relaxed and it is not the case of the appellant-Bank that they have done that exercise. What the Board has done is giving an opportunity to the officers, who are otherwise eligible, to complete the required service conditions and then would be given promotion, one completion of requisite conditions thereof. In view of the fact that they did not have the opportunity to serve and complete the qualifying service, with a view to see that those who had the advantage of completing the service would not scale a march over the seniors, they equally adopted an equitable principle of putting the officers in list B and being given seniority after promotion below his immediate senior in MMGS-II so that injustice will not be meted out to such officers for no fault of them. The procedure adopted by the bank is just, fair and reasonable. 11. The question is: whether such exercise is in violation of Article 14. The contention of Ms. Nisha is that weightage provided in the criteria for consideration by the committee get defeated is without force. The committee is required to consider the overall experience for the period specified therein. The mere fact that the fortuitous factor of officers officiating in MMGS-III would be a wedge to walk over those who did not have such fortuitous opportunity nor they denied of equal opportunity. This Court had considered an analogous situation in Mohd Usman V. State of Andhra Pradesh, 1971 (suppl) SCR 549: (AIR 1971 SC 1801). Therein, UDCs and LDCs in a district were unit-wise. The LDCs were entitled to be considered for promotion as UDCs. The UDCs were eligible to be considered for promotion as Grade II Sub-registrars in the Registration Department of Andhra Pradesh. Grade II Sub-Registrars was statewise cadre while LDCs and UDCs were district wise cadre. In some Districts, where persons appointed as LDCs though seniors, due to lakh of opportunities they could not get the chance to become UDCs, but they get the chances lately. In some districts, due to frequent of o.p.20198/00 8 successive vacancies, LDCs appointed later to those appointed in other district would get chances for promotion as UDCs over their counter part seniors in other district thereby they would steal a march over LDCs working in other districts. With a view to see that all of them would become eligible for consideration as Sub-Registrars Grade II, the UDCs and LDCs were clubbed together as a unit and for Statewise promotion as Sub-Registrar Grade II. That criteria was adopted to a avoid hardship and injustice to such of those senior LDC candidates. When the validity of the rule was questions, the High Court declared rule 5 of the Special Rules to be ultra vires of Article 14. When the matter had come up, this Court had held thus:(at p.1804 of AIR): “On the facts before us we are unable to agree that for the purpose of recruitment with which we are concerned herein the State should have classified the U.D.Cs and L.D.Cs separately. If the State had treated the U.D.Cs as being superior to the L.D.Cs. For the purpose of that recruitment it would have resulted in a great deal of injustice to a large section of the clerks. The fortuitous circumstance of an officer in a particular district becoming a U.D.C. would have given him an undue advantage over his seniors who might have as efficient or even ore efficient than himself merely because they chanced to serve in some other district. For the reasons mentioned above, we do not think that in the present case the State can be said to have treated unequals as equals. The rule of equality is intended to advance justice by avoiding discrimination. In our opinion the High Court by overlooking the reason behind Rule 5 came to the erroneous conclusion that the said rule violated Art.14 of the Constitution.” 12. It would thus be seen that it is not a case of ineligible persons made eligible, but a case of giving opportunities to those officers, who for no fault of theirs, were not made eligible to be considered and given opportunity to be considered for promotion and after consideration, in fulfilment of the service of line assignment and rural/semi-urban service for a minimum of two years were promoted to the MMGS-III. Thus, we hold that the policy adopted by the Board is not violative of Article 14 of the Constitution. But it must be remembered that in considering whether the candidate has completed the line of assignment or rural/semi-urban service for the required period, a clear demarcation be drawn between the officers who either due to volitious refusal to serve and those on account of inaction or deliberate omission on the part of the controlling authority did not have an opportunity as the case may be, to get the required service qualifications. Therefore, an exercise requires to be done by the appellant to identify this grouping and consider all those candidates who have otherwise become eligible but did not get opportunity, for no fault of theirs', to secure the service qualification but should be denied o.p.20198/00 9 to those who volunteered not to go for line assignment or rural or semi-urban service as the case may be, and then to consider according to the criteria prescribed under the rules or the circulars issued from time to time.' From this decision, it is abundantly clear that in that decision the promotion policy prescribing 2 years of rural service as an eligibility condition for promotion in accordance with the Government of India guidelines was upheld by the Supreme Court of India. In this case, the Bank has adopted a still more liberal policy by granting promotion to the officers subject to their completing 2 years of rural service later instead of putting them in a separate list to give them promotion till they acquire the mandatory rural service. In Ext.P9, the impugned clauses have been incorporated perfectly in tune with the policy already upheld by the Supreme Court. Therefore, I have no hesitation to hold that the impugned Clauses in Ext.P9 are perfectly valid and binding on the petitioner. 6. The petitioner next contends that the stipulation of 2 years' rural service is not applicable to her since her promotion from Junior Management Grade Scale I to Middle Management Grade Scale II was not subject to that condition. I am of opinion that in view of the earlier orders of the Bank prescribing that o.p.20198/00 10 condition for promotion which has been upheld, by the Supreme Court in Kashinath Kher's case (supra) it is too late in the day for the petitioner to contend so. Further she has not produced her promotion order promoting her to the Middle Management Grade Scale II, to prove the same. In any event, in Ext.R2(a) dated 14.11.1998, which is the order promoting the petitioner to MMG Scale III, along with others, it is specifically stated thus: “02. The officers in MMG Scale II whose name appear in the Annexure:B for promotion to Middle Management Grade Scale III enclosed to this circular letter, will be considered for promotion with retrospective effect only after they satisfactorily complete the stipulated mandatory assignments.” The petitioner is at Sl. No. 9 of Annexure B. She has not chosen to challenge the above condition. Therefore she cannot now be heard to contend that the condition of mandatory rural service for promotion is not applicable to her. 7. That leaves us with the other issue as to whether the petitioner had the 2 years' mandatory rural service required for promotion. Of course she had 1 year of service at Edathua branch which is admittedly a rural branch. Arthunkal Branch is also a rural branch where she joined duty from 18.1.2000. But she availed of leave till 30.6.2000 and thereafter did not work at o.p.20198/00 11 all. Therefore without counting the service at Venmony and Pallickal branches, the petitioner would not have 2 years' rural service. Based on Exts.P1, P12 and P13, the petitioner contends that those branches are rural branches. This is disputed by the Bank relying on Exts.R2(d) and R2(e) to contend that those branches have been classified as semi-urban branches by the Reserve Bank of India. 8. A branch of the Bank is classified as rural or semi- urban on the basis of the population of the village where the branch is situated. If the population is less than 10,000 the branch is a rural branch and if the population is more than 10,000, but less than one lakh, the same is classified as semi- urban. According to the Bank, as per the notification published by the Reserve Bank of India, Venmony and Pallickal branches are semi-urban and Edathua and Arthunkal branches are rural. Ext.R2(d) is a letter dated 4.12.2003 from the Reserve Bank of India to the Bank, in which it is stated that “based on 1991 census data and as per the records available with DESACS, Pallickal Branch (0006399-9660274) of SBI located in “Bharanikkavu Revenue Centre” in Alappuzha District of Kerala o.p.20198/00 12 State continues to remain 'semi-urban'”. Ext.R2(e) is a letter dated 11.3.2004 from the Reserve Bank of India to the Bank enclosing copy of a letter dated 3.3.2004 from the Lead Bank office, Alappuzha, in which it is stated that the Venmony Branch of State Bank of India is classified as semi-urban. The counsel for the petitioner contends that going by the dates of the communication, the same can only be based on the 2001 census and therefore the same cannot be relied upon to decide the issue since the petitioner's eligibility has to be decided as on 1.11.93 and 1.11.96, ie. as per the 1991 census, since the petitioner worked in those branches between 1993 and 1999. But Ext.R2 (d) clearly says that the classification of Pallickal branch is based on 1991 census and Ext.R2(e) refers to a letter dated 28.12.2000 for the classification. Whatever that be, when the Bank has treated those branches as semi-urban, it is for the petitioner to prove that they ought to have been classified as rural. Of course Ext.P1 certificate dated 18.10.1999 issued by the Tahsildar, Chengannur certifies that the Venmony Branch of State Bank of India is functioning in a Rural area of Chengannur Taluk. That certificate cannot be relied upon for the purpose of classification o.p.20198/00 13 of the branch unless the criteria for such certification is disclosed and the same tallies with those adopted by the Reserve Bank, especially when the Reserve Bank, the authority to do so, says otherwise. Exts.P12 and P13 are details of the 1981 census, which cannot be relied upon for deciding the issue, obviously. Therefore, in the absence of any materials produced by the petitioner to show otherwise, the assertion made by the Bank based on the information supplied by the Reserve Bank of India has to be accepted for the purpose of this original petition. That means that the petitioner has not been able to show that the Venmony and Pallickal Branches of State Bank of India are rural Branches. Therefore the petitioner has not proved that she has completed 2 years' rural service which is a mandatory condition for qualifying for promotion from Junior Management Grade Scale I to Middle Management Grade Scale II and from Middle Management Grade Scale II to Middle Management Grade Scale III. 9. The petitioner has got another contention that it was not her fault that she did not acquire the prescribed rural service qualification, since it is the discretion of the Bank to post officers o.p.20198/00 14 in rural Branches to enable the officers to put in rural service also. She points out that after completing one year's rural service in Edathua Branch she was transferred from there before she could complete 2 years of