IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13/05/2003 CORAM THE HONOURABLE MR. JUSTICE K.P.SIVASUBRAMANIAM WRIT PETITION No.8732 of 2000 and WRIT PETITION No. 8733 OF 2000 and 8642 and 19576 of 2002 Sri P.N. Ananthanarayanan .. Petitioner in all the petitions -Vs- 1. Union of India rep. by the Secretary to Government of India Ministry of Finance, New Delhi 2. Reserve Bank of India rep. by its Governor Reserve Bank of India Central Office Fort, Mumbai-400 001 3. State Bank of India rep. by its Chairman State Bank of India Central Office Building Madame Cama Road Mumbai-400 021 4. Mr.A.K.Purwar General Manager State Bank of India State Bank of India Central Office Building, Madame Cama Road Mumbai-400 021 5. Mr.P.J.Sampathkumar Managing Director S.B.I. Securities Limited Mumbai 6. Mr.T.S.Vaidyanathan General Banager State Bank of India State Bank of India Central Office Building, Madame Cama Road Mumbai-400 021 7. The Managing Director State Bank of India State Bank of India Central Office Building, Madame Cama Road Mumbai-400 021 8. Deputy Managing Director (Personnel) State Bank of India State Bank of India Central Office Building, Madame Cama Road Mumbai-400 021 .. Respondents in WPs.8732 & 8733/2000 1. The Chairman State Bank of India Central Office Nariman Point Mumbai-400 021 2. The Managing Director (National Banking) State Bank of India Central Office Nariman Point Mumbai-400 021 3. Shri R.C.Sharma Chief General Manager State Bank of India Local Head Office College Road Chennai-600 006 4. Shri S.C.Das General Manager (Commercial Banking) State Bank of India Local Head Office College Road Chennai-600 006 .. Respondents in WP.8642 of 2002 1. The Chairman State Bank of India SBI Central Office Building Madame Cama Road Mumbai-400 021 2. The Managing Director (National Banking) State Bank of India SBI Central Office Building Madame Cama Road Mumbai-400 021 3. The Departmental Committee for G.M. Promotion C/o The Deputy Managing Director (Personnel) and C.D.O State Bank of India SBI Central Office Building Madame Cama Road Mumbai-400 021 .. Respondents in WP.19576 of 2002 Writ Petition Nos.8732 of 2000, 8642 and 19576 of 2002 filed under Article 226 of the Constitution of India praying for the issue of Writs of Mandamus and Writ Petition No.8733 of 2002 praying for the issue of a Writ of Declaration as stated therein. For petitioner : Mr.V.Prakash For respondents : Mr.G.Masilamani, Senior Counsel :ORDER All these writ petitions have been filed by the petitioner who is now working as Deputy General Manager in the State Bank of India, hereinafter called "the Bank" and the crux of the issue raised in all these writ petitions is non-promotion of the petitioner. 2. In W.P.No.8732 of 2000, he has prayed for the issue of a writ of mandamus to promote him as Deputy General Manager with retrospective effect from the year 1988-89 on par with A.K.Purwar (the fourth respondent) and all further promotion thereon with consequential benefits. 3. In W.P.No.8733 of 2000 he has prayed for the issue of a writ of declaration declaring the promotion policy of S.B.I. for the purpose of promotion to TEG Scale VI, namely from Deputy General Manager and above, as illegal and void more part ause IV(C) of the said policy as violative of Articles 14 and 16 of the Constitution of India. 4. In W.P.Nos.8642 of 2002, he has sought for the issue of a writ of mandamus to ensure that ACR/Annual Appraisal of the petitioner for the year 2001-2002 is not written by Mr.S.C.Das, General Manager ( fourth respondent) or any other officer attached to the Local Head Office at Chennai or be reviewed by R.C.Sharma, Chief General Manager, and only by independent, fair-minded superior officers at the Bank's Central office. 5. In W.P.No.19576 of 2002 writ of mandamus is sought for to direct the respondents to consider the petitioner for promotion in the cadre of General Manager. 6. Elaborate arguments were heard at two different stages namely, at the first stage when W.P.Nos.8732 and 8733 of 2000 were heard and orders stood reserved. While so, the petitioner being aggrieved by the subsequent development of his not being considered for the ensuing promotion for the year 2001-2002, had come forward with the last two writ petitions which were also clubbed together along with the first two writ petitions considering that there wer e several common issues. Pleadings by both sides have also been presented in an elaborate manner running to several pages and it is not necessary to deal with all the allegations and the minute details raised by both sides except for reference as may be required. It will be sufficient to condense and summarise the pleadings and submissions as follows:- 7. The petitioner joined the services of the Bank in the year 1966 as a Clerk. After successfully completing the examinations (C.A.I.I.B.), was directly recruited as Probationary Officer in 1968. After completion of Probation he was placed in the cadre of Junior Management-Grade I. Subsequently, he earned his promotion as Staff OfficerGrade -III. The petitioner has also given various details regarding the excellence of his performance in various capacities and different spheres which according to him is duly recognised and appreciated by his superiors. He was posted in several sensitive areas in recognition of his superior performance. He was posted as Second Accountant in Jabalpur branch and then as Branch Manager in Hoshanga at Madhya Pradesh. He was put in complete charge of the branch which position was given to him only in recognition of his meritorious service. Then he became the Area Superintendent in the Head Office at Bhopal and he was posted as Development Officer in charge of Performance and Personnel, and Institutional banking. Subsequently, bearing in mind his performance and knowledge in Foreign Exchange, he was specifically posted as Development Manager, notwithstanding the fact that he was only in the cadre of middle Management -Grade III. He was selected for International Banking in Australia and deputed to the then National Bank, Australia, Melbourne. He was subsequently posted at Singapore branch of State Bank of India. 8. On return from the said foreign assignments he was promoted to next higher grade of Senior Manager-scale IV on 8.10.1981 at the age of 37 years and posted to Behrain branch as Internal Auditor. On 1.8.1994, he was promoted as Assistant General Manager and at the age of 39 years he was one of the youngest officers in the said post. The petitioner would further submit that further promotion to the post of Deputy General Manager was due which was recognised as top executive grade in scale VI. The selection process, according to the petitioner was as in civil services viz., for the purpose of promotion, seniority is referable in the order of entry. In terms of the said policy to fill up the post of Deputy General Manager for the year 1988-89 only individuals belonging to the batch of Assistant General Managers of the year 1982 and those of earlier years who have not been selected in the previous batch, alone should have been considered by the D.P.C. But this convention and norm was broken and the scope of selection was widened only in order to favour a few individuals belonging to 1983-84 batch of Assistant General Managers. Subsequently, the earlier convention of year wise batch for consideration, was restored. The petitioner further submits that as a result of including 1983-84 batch for being considered for the promotion to the vacancy for the year 1988-89 and even though he also belongs to 1984 batch, he was not selected. But instead A.K.Purwar and D.K.Sinha were selected in spite of the fact that they did not have equivalent service performance and experience of the petitioner, only because they were favoured candidates. For the purpose of promotion, criteria is seniority for the purpose of coming within the zone of consideration and thereafter only on the basis of the merit. The petitioner has also explained in detail the process of selection and contends that the policy of selection was only on the basis of performance in the interview and the service record. Seniority was to be taken into account for the purpose of demarcating the zone of consideration. The D.P.C. will then finalise the panel by giving 70 per cent weightage to the Annual Confidential Report (ACR) for all the previous years an d 30 per cent weightage for the performance in the interview. The Confidential Reports were being written by superior officers and grades will be assigned as excellent, good, average, above average etc. If there were any positive adverse remarks such remarks alone will be communicated to the officer. But degrading of an Officer from the grade of "excellent" to the grade of "good" etc. was never communicated to the Officer. The petitioner would further positively state that he was not communicated with any adverse remarks as regards his Annual Confidential Report relevant for the period of promotion in the year 1988-89. 9. The petitioner would also further point out that Confidential Reports could not be written by an Officer holding the same post. But the petitioner's Confidential Report were written by one A.K.Batra who was Assistant General Manager of 1983 batch, who was competing with the petitioner for promotion. Therefore, the petitioner had the ignominy of a peer writing his Confidential Report. Such an action was invalid. The petitioner is also critical about the entries made in his Annual Confidential Report during 1987 by the then Deputy General Manager Mr.K.D.Chadda. The petitioner apprehends that he had been down graded. But no adverse remarks had been communicated to the petitioner. The selections have to be based on objective criteria and cannot be a result of whimsical capricious attitude. For instance, the work of the petitioner for the entire period in the substantive cadre of Assistant General Manager was outstanding as borne out by the assignment and responsibilities given to the petitioner. He would further state that the practice of the Bank in communicating only adverse entries in the Confidential entry and not as regards the downgrading from "excellent" to "good" etc., was illegal and the petitioner was unable to make any representation against such downgrading. However, the petitioner had suffered the consequence thereof by loss of promotion. In the case of the petitioner himself, he contends that any entry other than "outstanding" will be only a subjective entry and not a fair or objective entry. Therefore, according to the petitioner there were serious irregularities in the selection of the year 1988-89. In fact, the Supervisory staff Federation of State Bank had taken up the issue before the Supreme Court. However, the same was subsequently withdrawn. He would further submit that there was also regional bias in the selection effected during the said period and that about 18 Assistant General Managers in Lucknow Circle were promoted as Deputy General Managers. Even in the years which followed, the petitioner was not promoted as Deputy General Manager. The same was arbitrary and capricious and contrary to his service performance which was considered to be excellent by the superior officers. The petitioner was subsequently promoted as the Deputy General Manager only on 16.2.1994 very much after 1988-89. Therefore, the petitioner contends that not promoting him in the year 1988-89 has to be held as arbitrary and violative of Articles 14 and 16 of the Constitution of India. Therefore, he will be entitled to be promoted and as on the date when A.K. Purwar was promoted as Deputy General Manager. 10. The petitioner further submits that he was posted at Madras as Deputy General Manager-Vigilance. He contends that the said posting was motivated and without recognising his achievements and records. One Sampath Kumar, the fifth respond was posted as Deputy General Manager in the International Branch which was created for boosting leather exports and he was given the said posting because he was closely related to a former Deputy Managing Director. During his tenure, the said individual was directed to recover advances made to M/s.Garden Woodroff and subsequently the petitioner had recovered the same. Therefore, the petitioner underwent severe trauma and nervous coma and had to be hospitalised at Kaliappa Hospital, Madras. It was purely due to the injustice done to the petitioner which was unfair. The petitioner had maintained high level of p erformance, dedication and integrity and instead of rewarding him, he was victimised for the only reason that he was an upright Officer. After his treatment, he was posted as Principal of the training school and in 1996, posted at Bhopal as Deputy General Manager and Financial Officer in which post he worked till 1998. In September 1998, he was transferred from Madras as Director of Finance and on deputation to a Company which was virtually a dead Company with no assets. Thereafter, he was posted as Deputy General Manager, Rehabilitation Branch in which he was continuing till date. 11. The petitioner further submits that the next promotional post was of General Manager and the petitioner was denied promotion for the years 1997, 1998 and 1999. The petitioner contends that such denial was arbitrary and based on the entries in his confidential reports, which was not brought to his notice. The petitioner further submits that the criteria for selection to the post of General Manager as per the notification issued during April 1998 was selection on the basis of valuation by DPC which gives 75% weightage to the entries in annual confidential reports (ACR) and 25% to the performance in the interview. During all the said three years, the petitioner had no adverse entries in his ACRs and he has also consistently done well in the interview also. However, he was overlooked and his rank juniors were promoted as General Manager. Assessed from performance, his annual ACRs ought to have been excellent and there was no justification for downgrading. He has submitted a report in the context of audit of Industrial Financial Branch at Indore which was considered to be an outstanding work. However, the said report was not disclosed even to RBI. In the said report, he had pointed out, a huge default running into crores of rupees as regards M/s.Madhumilan Syntax Limited, Indore by misuse of the facilities. Though an investigation was warranted by the RBI as well as a criminal investigation, no steps were taken. He would further submit that in the report, he had fixed accountability and found that advances were being made by one T.S.Vaidyanathan, the then Deputy General Manager of Industrial and Financial Branch, the sixth respondent herein and Mr.Ashwin Jain, the Chief Manager of the said branch. But to the dismay of the petitioner instead of taking action pursuant to the report, Mr.Vaidyanathan was promoted as General Manager and Mr.Ashwin Jain was promoted as Assistant General Manager. The petitioner states that he had stated the said incident to place on record to demonstrate the manner in which promotions were being effected by the SBI. He would further state that Mr.D.K.Sinha, the then Circle Chief Manager of Bhopal had made certain adverse entries behind the back of the petitioner downgrading his ACR for the relevant period. Likewise the petitioner would contend that Mr.Sampath Kumar who did not have a good record was also favoured with a promotion. 12. The petitioner also questions the promotion policy of the SBI to higher management cadre. As per the policy formulated in April 1993 , 75% weightage was to be given to the entries in the ACRs and 25% for the performance in the interview. Under clause-4(c) of the said policy, there is a debarment under which an Officer called for interview for a post thrice and not selected cannot be further considered for promotion to such posts. In view of the fact that the petitioner was considered during the years 1996 to 1999 for promotion and not selected, the said clause will operate against him for further consideration. The petitioner submits that the said clause of debarment is illegal and violative of Articles 14 and 16 of the Constitution. The policy is not based on any rational criteria. The debarment clause was also unreasonable. The petitioner further submits that the policy of giving 75% weightage for the entries in the annual confidential reports was also not based on any rational criteria. The annual appraisal report is based on a marking system and requires reason to be given by the reporting authority only when an Officer is awarded hundred out of hundred. However, the downgrading of an Officer does not require any reasons to be given. The grading of excellent, average, above average and poor is done on the basis of a marking system. The said marking system and the entries referable thereto, gives a very arbitrary discretion to the Reporting Officer in awarding marks and such unguided discretion results in consequences with regard to the promotional prospects of an Officer. The criteria adopted by the SBI for the purpose of promotion to its higher management service is thus based on the whims of the superior Officer and not related to the real suitability for the purpose of promotion. Public interest requires that SBI should have a rational and sound policy of promotion to its higher management. 13. The petitioner had also filed an additional affidavit on 2 3.8.2000. In the additional affidavit also, he has stated that the performance of appraisal in the State Bank of India was not objective and that it resulted in grave injustice to the petitioner. The promotions have been given in an arbitrary manner and affecting the well being of the organisation itself. He has also named certain individuals like Mr.K.K.Bhargava, Mr.Birendra Kumar, R.Sampath Kumar, T.S. Vaidyanathan and others as having been shown undue favours. 14. In the counter affidavit filed by the third respondent, the respondent claims that the writ petition No.8732 of 2000 was liable to be dismissed in limini due to latches, as the petitioner is trying to reopen the promotions made during the year 1989 after a lapse of 12 years. To interfere with the promotions at this stage will upset the service career of many persons. The counter also gives details of the establishment of the SBI by an Act of parliament and the provisions of the Act empowering the Board to constitute several committees including the Executive Committee. The respondent also states that promotions are effected in accordance with the policy laid down by the Central Board or the Executive Committee from time to time. Service rules were also framed by the Central Board in exercise of the powers conferred under Section 143 (1) of SBI Act. Rule 17 provides that the promotion to all grades shall be made in accordance with the policy laid down by the Central Government. 15. It is further contended that the allegations contained in the affidavit in support of the writ petition, contains conflicting, contradicting and inconsistent statements. After referring to the promotions in favour of the petitioner stage by stage, the respondent submits that all the promotions and transfers were made in accordance with the rules and in accordance with the merit and seniority in terms of the policy. Promotion to the TEG scale were given to deserving officers. On several occasions, promotions could not be made due to several administrative reasons, resulting in large accumulation of eligible candidates for the promotion over a period of time. Therefore, clubbing of all eligible candidates was devised by the committee. The contention that seniority was referable to the year of entry was also not correct. 16. It is further stated that the promotion policy was considered by the Supreme Court in a batch of writ petitions and upheld in the judgment reported in 1997 I LLJ 4190. As regards the promotions of Sri A.K.Purwar and D.K.Sinha, it is stated that their promotions were considered in accordance with the rules and promotion policy. It was not correct to state that the confidential report of the petitioner was not written and handled by a superior Officer. The petitioner was reporting to the Regional Manager, New Delhi and as he was working under the said Office, it was he who was the controlling Officer who could write confidential reports. Further the confidential report given by the reporting authority is also reviewed by the high ranking official than that of the reporting authority, who is called as reviewing authority. The confidential reports of the petitioner were reviewed by an authority higher than the reporting authority. 17. It is further stated that A.K.Batra, who was the reporting authority belongs to 1983 batch while the petitioner belongs to 1984 batch. Therefore, there was no scope for Mr.Batra to have any bias against the petitioner. It is further stated that the preparation of ACRs are by their nature strictly confidential and therefore the same could not be communicated. The petitioner's allegations are general in nature and have no bearing on the issues involved in the writ petition. Promotions were given to the meritorious Officers only on the basis of the Confidential reports and the performance in the interview and not otherwise. The various allegations against several Officers, such as A.K.Purwa, R.Sampathkumar and others were in correct. Such allegations made against other Officers would only exhibit the intolerance of the petitioner towards other fellow Officers. 18. As regards the limit prescribed for being considered for promotion under clause 4(c), it is submitted that such a policy was valid and it is based on consideration of efficiency saturation point at different levels and that such a policy is also found accepted in several other competitive examinations as as UPSC, TNPSC etc. Therefore, clause-4(c) was perfectly valid. The State Bank of India is a Business organisation and has to identify posts and available talent for the respective posts in the organisation to meet the challenges of the assignment and therefore the Bank had devised a policy on realistic and reasonable basis, in order to choose the best available talent. 19. A further additional counter affidavit has been filed on 12.11.2000 dealing with the additional affidavit filed by the petitioner. It is stated that for promotion to TEG scale VI and upwards various relevant factors are taken into account before making any promotion. Performance appraisal of an Officer is prepared by a Reporting authority, who has the immediate control and supervision of the Officer. A form of annual appraisal report form (AARF) is prescribed with the required particulars of the performance of an Officer on various aspects. Promotion Committee not only takes into account AARF report but also the promotion appraisal form (PAF) to be submitted by the CGM of the Circle. Further allegations relating to the promotion of A.K.Bhargava and the extension granted to G.P.Kundra and other Officers have also been dealt with in the additional counter affidavit and the allegation of impropriety and bias in the promotion of the said Officers are also denied in the additional counter. 20. Respondents 4,5 and 6 who have been named by the petitioner have also filed separate counters denying the various allegations made by the petitioner. 21. The petitioner has filed a detailed rejoinder affidavit dealing with the policy of promotion as well as allegations against named persons and the defence taken by the respondents in their counter. With regard to the non-communication of the downgrading of the entries, it is bound to have serious repercussion on the future career of the concerned employee. Non-communication of such downgrading was violative of principles of natural justice. As regards the ACR of the petitioner for the year 1986, in the counter, there is no denial of the fact that it was A.K.Batra who wrote ACR for the said year. The contention of the bank that there was no scope for Batra to exhibit any bias was incorrect and in the rejoinder affidavit, the petitioner has also dealt with many details regarding the allegations against individual Officers which need not be gone into any detail. 22. While the above two writ petitions were heard and pending for disposal, petitioner has come forward with W.P.No.8642 of 2002 praying