IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 OP.No. 38176 of 2002(T) ----------------------------------- PETITIONER(S): ------------------------ K.P. UNNIKRISHNAN, (S/O. V.K.PADMANABHAN NAIR) POORNASREE, PERUNNINAKULAM, IRIMPANAM P.O., ERNAKULAM DISTRICT. (RETIRED BRANCH MANAGER, CENTRAL BANK OF INDIA). BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR RESPONDENT(S): -------------------------- 1. CENTRAL BANK OF INDIA REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR (CMD) CENTRAL BANK OF INDIA, CENTRAL OFFICE, CHANDERMUKHI, NERIMAN POINT, MUMBAI-400 021. 2. GENERAL MANAGER, CENTRAL BANK OF INDIA, ZONAL OFFICE, 48/49 MONTIETH ROAD, CHENNAI-8. 3. REGIONAL MANAGER, CENTRAL BANK OF INDIA, REGIONAL OFFICE, GEO TOWERS, PALLIMUKKU, COCHIN-682 016. 4. THE POSTMASTER GENERAL, GEO TOWERS, PALLIMUKKU, VALANJAMBALAM, COCHIN-682 016. 5. THE SENIOR SUPERINTENDENT, RMS EK DIVISION, ERNAKULAM COLLEGE POST OFFICE BLDG., COCHIN-682 011. 6. UNION OF INDIA REPRESENTED BY THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF INDIA, NEW DELHI. R1 TO R3 BY ADV. SRI.V.V.SIDHARTHAN R4 TO R6 BY ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.PRAKASH PUTHIADAM, ADDL.CGSC SRI.GEORGE JOSEPH, ADDL.CGSC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 2/- -2- O.P.NO.38176/2002 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 13/4/1972 ISSUED BY THE CENTRAL BANK OF INDIA, TRICHUR BRANCH. P2 COPY OF THE ORDER DATED 9/5/1972 ISSUED BY THE CENTRAL BANK OF INDIA. P3 COPY OF THE MEMO NO.PF/KP.UNNIKRISHNAN DATED 13/4/1972 ISSUED FROM THE OFFICE OF THE SENIOR SUPERINTENDENT RMS DIVISION, COCHIN-18. P4 COPY OF THE CERTIFICATE NO.B-151 DATED 15/10/2001 ISSUED BY THE SENIOR SUPERINTENDENT ERNAKULAM RMS “EK” DIVISION OF POSTAL DEPARTMENT. P5 COPY OF THE ORDER DATED 10/5/1999 ISSUED BY THE CENTRAL BANK OF INDIA. P6 COPY OF THE ORDER NO.ZO:PRS:PRO:1-11:99:2000/466 DATED 17/5/1999 ISSUED BY THE CENTRAL BANK OF INDIA. P7 COPY OF THE REPRESENTATION DATED 21/5/1999 SUBMITTED BY THE PETITIONER BEFORE THE GENERAL MANAGER, CENTRAL BANK OF INDIA. P8 COPY OF THE ORDER DATED 9/11/1999 ISSUED BY THE CENTRAL BANK OF INDIA TO THE PETITIONER. P9 COPY OF THE ORDER DATED 9/9/2000 ISSUED BY THE 2ND RESPONDENT. P10 COPY OF THE ORDER DATED 15/9/2000 ISSUED BY THE CHIEF MANAGER, WILLINGDON ISLAND BRANCH. P11 COPY OF THE REPRESENTATION DATED 23/9/2000 SUBMITTED BY THE PETITIONER BEFORE THE GENERAL MANAGER, CENTRAL BANK OF INDIA ZONAL OFFICE, MADRAS. P12 COPY OF THE REPRESENTATION DATED 31/10/2000 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN & MANAGING DIRECTOR, CENTRAL BANK OF INDIA. P13 COPY OF THE REPRESENTATION DATED 29/10/2001 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN AND MANAGING DIRECTOR OF CENTRAL BANK OF INDIA. P14 COPY OF THE LETTER DATED 15/1/2002 ISSUED BY THE 3RD RESPONDENT- REGIONAL MANAGER OF CENTRAL BANK OF INDIA. P15 COPY OF THE RELEVANT PORTIONS OF THE CENTRAL BANK OF INDIA (EMPLOYEES) PENSION REGULATIONS, 1995. P16 COPY OF THE JUDGMENT DATED 27/9/2002 IN OP.NO.16651/2002 OF THE HON'BLE HIGH COURT OF KERALA. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE CIRCULAR NO.CRO:PRS:99-2K:C.34 DATED 04/10/99 ISSUED BY THE 3RD RESPONDENT. 3/- -3- O.P..NO.38176/2002 R1(B) COPY OF THE ORDER NO.CRO:PRS:99-2K:925 DATED 09/11/99 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. R1(C) COPY OF THE LETTER NO.CRO:PRS:99-2K:1357 DATED 02/02/2000 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. R1(D) COPY OF THE CENTRAL BANK OF INDIA EMPLOYEES VOLUNTARY RETIREMENT SCHEME-2001(CBIEVRS-2001) DATED 31/01/2001. R1(E) COPY OF THE ORDER NO.EC.F.4/8/4/98 IR DATED 05/02/02 ISSUED BY THE GOVERNMENT OF INDIA. /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` O.P. No. 38176 of 2002 T ``````````````````````````````````````````````````````````` Dated this the 27th day of May, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Among the reliefs sought for in the original petition, what is urged before this Court is the claim of the petitioner for fixation of salary in Scale-II with effect from 15.11.1999, the date on which the petitioner joined duty as Branch Manager in the Thanikudam Branch of the first respondent Bank. The claim of the petitioner arises in the following manner: 2. Petitioner joined the services of the first respondent Bank as a Clerk-cum-Typist on 09.05.1972. After earning promotions, he acquired eligibility to be promoted to the post in the Middle Management Cadre Scale-II with effect from 31.03.1999. By Ext.P5 order dated 10.05.1999, the petitioner was promoted to Middle Management Grade Scale-II in the scale of `6210-8740. Clauses 1, 2, 4 and 5 of the promotion order being relevant are extracted below for reference:- “1. You are being placed as Manager in Operations side under the jurisdiction of Zonal Manager, Chennai. The exact place of posting will be intimated to you shortly for completing rural exposure. 2. The effective date of your promotion will be 31.3.1999 NOTIONALLY and your date of reporting to the place of posting will be 24.05.1999. The monetary benefits will start accruing from the date of your reporting at the advised place posting. 4. Failure to report at the advised place of posting on the stipulated date will be deemed as refusal of promotion. 5. Failure to complete rural stint will result in reversion to JMG Scale I, in terms of Letter of Undertaking given to you, even if you are otherwise confirmed in Scale II.” 3. In pursuance to Ext.P5, Ext.P6 order was issued, informing the petitioner that he was posted as Branch Manager at Pidagam under the jurisdiction of the Regional Manager, Tiruchirapalli to undergo rural exposure. It was further stated in the said order as follows:- “ As already indicated to you in the Promotion Order cited above, the effective date of your promotion will be 31.03.1999 NOTIONALLY subject to your reporting to the advised place of posting on 24.05.1999. The monetary benefits will start accruing from the date of your reporting at the advised place of posting. It is reiterated that failure to report at the advised place of posting on the stipulated date will be deemed as refusal of promotion.” 4. On receipt of the said order, petitioner submitted Ext.P7 representation, requesting that he be given six months' time to join the post or be given a convenient posting. There was no reply and he continued at place where was then working in the Middle Management Scale-I, as before. According to the petitioner, while so, by Ext.P8, he was posted as Branch Manager at Thanikudam Branch, without indicating the scale attached to the post. In pursuance to Ext.P8, he joined at Thanikudam Branch and continued to avail salary in Scale-I. Subsequently, by Ext.P9, another officer was posted to his Branch, but, however, the said officer was posted in Scale-II. Thereupon, the petitioner submitted Ext.P11 representation complaining that, he having been promoted to Scale-II by Ext.P5 order ought to have been given the benefit of Scale-II on a par with the officer posted by Ext.P9. There was no reply. Meanwhile, a voluntary retirement scheme was introduced by the Bank and availing of the benefit of the said scheme, petitioner retired from service with effect from 31.03.2001. 5. The stand taken by the Bank in the counter affidavit filed is that, while working in Scale-I, petitioner was promoted to Scale-II. It is stated that the order required the petitioner to join the post on the date specified, viz. 24.05.1999, and that, as the petitioner did not join the post, it was a case of deemed refusal to accept promotion, attracting disqualification for further promotion in terms of clause 13(2) of the promotion policy for officers. It is stated that during the period of disqualification, petitioner responded to Ext.R1(a) and accordingly, the petitioner was transferred and posted as Branch Manager, Thanikudam Branch as per Ext.P8 order. Therefore, in essence, what Bank contends is by virtue of the petitioner's refusal to join the post pursuant to Ext.P5, petitioner lost the benefit thereof and that pursuant to the application made by the petitioner, he was merely transferred and posted to Thanikudam, to a post carrying pay in Scale-I. On this basis, Bank submits that the petitioner is not entitled to the benefit claimed. 6. Petitioner has filed a reply affidavit, disputing the averments in the counter affidavit filed by the Bank. According to him, his non-joining pursuant to Ext.P5 did not attract the disqualification in terms of clause 13(2) of the promotion policy. It is also his case that he did not make any application in response to Ext.R1(a) as contended by the Bank and that on the other hand, the Bank posted the petitioner to Thanikudam recognising the fact that he was already promoted to Scale-II as per Ext.P5. 7. Having considered the rival submissions on both sides, I am inclined to think that the petitioner is not entitled to the benefits of Scale-II as claimed by him. A reading of Exts.P5 and P6, the orders promoting the petitioner, show that these orders required the petitioner to join at Pidagam on 24.05.1999. The order also provided the consequences of non joining. In fact, it was clearly mentioned that failure to report as directed will be deemed as refusal of promotion. Admittedly, in pursuance to Exts.P5 and P6, petitioner did not join the post at Pidagam. Therefore, there is a deemed refusal of promotion, attracting the consequence of disqualification as provided in clause 13(2) of the promotion policy for officers. 8. It is a fact that the petitioner had submitted Ext.P7 representation requesting for time or convenient posting. Ext.P7 is not a statutory representation. Therefore, even if it is assumed that the Bank has not replied to Ext.P7, that will not exonerate the petitioner from his liability to comply with Ext.P5 or the consequences arising out of the non compliance with the conditions of Exts.P5 and P6 or clause 13(2) of the promotion policy. Therefore, consequent on the refusal of the petitioner to join the post, he lost the benefit of promotion as per Exts.P5 and P6. As a result thereof, the petitioner continued the work and was drawing salary in the Middle Management Scale-I. 9. Now, the remaining question is whether posting as per Ext.P8 was on the basis of an application made by the petitioner in response to Ext.R1(a) circular issued by the Bank. According to the Bank, in response to Ext.R1(a), petitioner submitted application dated 07.10.1999 and it was on that basis, he was posted at Thanikudam in the Middle Management Grade Scale-I. On the other hand, in the reply affidavit filed, petitioner has asserted that he did not make any application as claimed by the Bank. Though it is true that the Bank has not produced a copy of the application stated to have been made by the petitioner and the petitioner is disputing the said assertion of the Bank, on facts, I am inclined to accept the case pleaded by the Bank. This is for the reason that Exts.P11 and P12 representations filed by the petitioner indicate that he had applied for posting in response to Ext.R1(a) and that it was on the basis of such application that he was posted at Thanikudam as Branch Manager. In Ext.P11, petitioner has stated about Ext.P7 representation and thereafter, stated thus:- “ Since I did not hear anything, I applied for rural posting and I am posted at Thanikudam Branch as Scale I Branch Manager and undergoing rural exposure from 15.11.1999.” 10. This averment is reiterated in Ext.P12 also. Thus, it is obvious that it was knowing fully well that the petitioner had suffered the disqualification and that the post available at Thanikudam was in Scale-I that the petitioner applied for the post, in response to Ext.R1(a) and was 'transferred' as per Ext.P8. That apart, it is also to be noted that, till Ext.P8 was issued, petitioner was working in Scale-I and Ext.P8 consciously uses the expression of 'transferred', which indicates a parallel movement. The aforesaid two facts also, therefore, demonstrate that the petitioner has been rightly given Scale-I. 11. As far as the officer posted by Ext.P9 is concerned, like every other employee, she earned promotion in the normal channel and was posted in Scale-II. In the facts of this case, petitioner cannot compare himself with the beneficiary of Ext.P9 and complain that he has been discriminated. For the aforesaid reasons, I do not find any merit in the original petition. Original petition will stand dismissed. Sd/- (ANTONY DOMINIC, JUDGE) aks/30.05 // True Copy // P.A. To Judge ANTONY DOMINIC, J. ```````````````````````````````````````````` O.P. No. 38176 of 2002 T ```````````````````````````````````````````` J U D G M E N T 27th day of May, 2011