IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 26.10.2009 Coram The Honourable Mr.Justice K.K.SASIDHARAN W.PNo.8010 of 2000 Pandyan Grama Bank Offiers' Union rep.by its General Secretary No.6, Pichai Street, Virudhunagar-626 001. ...Petitioner -Vs.- 1. Pandyan Grama Bank rep.by its Chairman Administrative Office Kandapuram Street Virudhunagar-626 001. 2. M.Balan 3. S.Selvamuthupandian 4. K.Vijayaraghavan ...Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for records relating to order No.PAD/1/2000-2001 dated 8.4.2000 passed by the first respondent, quash the same insofar as the promotions to respondents 2 to 4 are concerned and direct the first respondent to promote S.Karunakaran, M.Seenipandi and R.Prabhakar to the post of Officer Scale II with effect from 8.2.2000. For Petitioner : Mr.P.V.S.Giridhar For respondents : Mr.N.G.R.Prasad for RR 2 to 4. ORDER This writ petition has been filed to quash the proceedings of the first respondent in Reference No.PAD/1/2000-2001 dated 8.4.2000 granting promotion to the respondents 2 to 4 and to direct the first respondent to promote S.Karunakaran, M.Seenipandi and R.Prabhakar to the post of Officer Scale II with effect from 8.2.2000. BACKGROUND FACTS:- THE PETITION:- 2. The petitioner is a registered Union formed with a view to protect the rights and interest of officers of the first respondent Bank. 3. The first respondent is a bank and there are three grades of officers namely, Officers Scale I, Scale II and Scale III. Promotion from Officers Scale I to Officers Scale II is to be made on the basis of seniority-cum-merit under the Service Rules. Officers in https://hcservices.ecourts.gov.in/hcservices/ Scale I, who have rendered eight years of service on regular basis are eligible for promotion. The selection is to be made on the basis of written test, interview and assessment of performance appraisal report for the preceding five years. 4. The relevant rule as contained in Rule 9 provides that Scheduled Caste/Scheduled Tribe officers, who are senior enough in the zone of consideration for promotion and within the number of vacancies for which select list has been drawn up, would be included in the list, provided they are not considered unfit for promotion. 5. During January, 2000, eligible officers scale I were asked to attend written test which was held on 23.1.2000. Even though there were only 31 vacancies, more than 125 candidates appeared in the written examination. Subsequently on 31.3.2000, it was announced that 54 candidates had passed the written test and they were all asked to attend the interview. Eight scheduled caste candidates including S.Karunakaran, M.Seenipandi and R.Prabhakar were in the list. 6. The eight Scheduled Caste candidates figured within Sl.No.31 in terms of inter se seniority of those who passed the written test. However when the select list was announced as per proceedings dated 8.4.2000, it was found that the three scheduled caste candidates namely, S.Karunakaran, M.Seenipandi and R.Prabhakar were not selected. The non- selection was unreasonable and it was also violative of the service rules. 7. Thiru S.Karunakaran entered the service as Officer Scale I on 4.11.1981. Similarly Thiru M.Seenipandi and Thiru R.Prabhakar entered the service on 9.12.1981 and 19.1.1987 respectively. All these three officers have good service records and they have not suffered any penalty or adverse remarks during the period relevant for consideration for promotion. Respondents 2 to 4 are all junior to them. 8. The rules envisage that promotions have to be made on the basis of seniority-cum-merit. The non-selected candidates were seniors enough in the zone of consideration for promotion and as such their names have to be included provided they are not considered unfit for promotion. However there was nothing to brand them as unfit for promotion and as such non-selection of S.Karunakaran, M.Seenipandi and R.Prabhakar for the post of Officers Scale II was per se illegal and the selection of respondents 2 to 4, who are juniors to the other candidates have to be set aside. THE DEFENCE:- 9. The first respondent has filed counter affidavit in answer to the contentions raised in the affidavit filed in support of the writ petition. According to the first respondent, vacancies in Scale II has to be filled up by following the rule regarding seniority-cum- merit. The merit was decided on the basis of written test, interview and performance appraisal report. Those who obtained minimum 40% in the written test were called for interview and those candidates who were found fit in the interview by taking into consideration the performance appraisal report were promoted. https://hcservices.ecourts.gov.in/hcservices/ 10. There were 31 vacancies and 164 candidates appeared for the written test. However only 54 candidates qualified for interview. Those candidates were interviewed and 31 were promoted based on the performance appraisal report as well as their performance in the interview. Once they were found fit in the interview, they were promoted on the basis of seniority. Out of the eleven scheduled caste candidates who got through the written test, five got through the interview and they were all promoted. The candidates by name S.Karunakaran, M.Sennipandi and R.Prabhakar were not selected as their confidential reports were not good and they were also declared unfit in the interview. The first respondent has also detailed the departmental proceedings initiated against those three candidates. 11. Thiru S.Karunakaran was cautioned by a letter dated 9.6.1997 for late attendance in spite of repeated warnings on his habitual late coming. As per proceedings dated 17.2.1997 he was again warned for unauthorised stay at the Bank premises during night hours indulging in undesirable activities. A charge sheet was also issued to Thiru S.Karunakaran for certain serious acts of commission and omission and again as per proceedings dated 8.3.1996 he was cautioned. Subsequently as per proceedings dated 25.3.1998 Thiru S.Karunakaran was once again cautioned for his discrepancies/lapses in performing his duties as Manager. His performance appraisal report shows that he was a below average worker. 12. The performance of Thiru M.Seenipandi was also below average. He was suspended from service on 18.12.1989 for committing certain acts of commission and omission during his term as Manager of Tenkalam Branch. Subsequently he was reinstated on 20.2.1995. He was cautioned as per proceedings dated 19.3.1998 for putting the bank to grave risk of losing Rs.86,672/-. He was also cautioned as per proceedings dated 21.7.1998 for making dual claim of travelling allowance. His performance appraisal report shows that he is a below average worker. 13. Thiru R.Prabhakaran was charge sheeted for serious lapses for fraudulently availing 14 agricultural jewel loans by forging the signature in the loan documents and opening Savings Bank Account in the name of non-existing persons and for bogus transactions in the account. By taking a lenient view he was awarded punishment of reprimand as per proceedings dated 1.11.1996. Similarly as per proceedings dated 7.1.1999, he was cautioned for late attendance and his performance appraisal report shows unsatisfactory performance. 14. In short, the first respondent justified the non grant of promotion to S.Karunakaran, M.Sennipandi and R.Prabhakar on the ground that they obtained only less marks in the interview and that their performance appraisal report shows that they were below average. DISCUSSION:- 15. The writ petition has been preferred by the Officers Union of the bank. Therefore before taking up the rival contentions on merits, I am of the considered view that the very maintainability of the writ petition at the instance of the Union has to be taken. It is only in case the writ petition is found maintainable at the https://hcservices.ecourts.gov.in/hcservices/ instance of the petitioner union, the further question as to whether the denial of promotion to the three candidates were illegal has to be considered. 16. The challenge in this writ petition was not with respect to any of the service regulations framed by the first respondent. The impugned order pertains to a proceeding for promotion of 31 candidates including respondents 2 to 4. As per the averments in the writ petition three of the officers namely, S.Karunakaran, M.Seenipandi and R.Prabhakar were not promoted even though they were qualified to be promoted. However very strangely those three officers are not before this court. There is nothing indicated in the affidavit as to whether the Union was authorised by the three aggrieved officers to file this writ petition. 17. In the affidavit filed in support of the writ petition, the petitioner has stated that substantial number of officers of the bank are members of the petitioner union. It was not even stated as to whether those three officers by name S.Karunakaran, M.Seenipandi and R.Prabhakar are also members of the union. When the individual officers have no grievance in respect of the impugned order, the question is as to how the Union was aggrieved. There is nothing on record to show that the individual officers have taken up the issue of denial of promotion with the first respondent at any point of time. 18. The right to consider for promotion is the individual right of the employee, over which the association has no role to play. The order under challenge has nothing to do with the petitioner union. The union was exposing the cause of three of the employees. However whether to challenge the impugned order nor not is a matter to be decided only by the individual employees. By no stretch of imagination it could be said that the petitioner was aggrieved on account of denial of promotion to three of the officers of the bank. 19. The issue regarding locus standi of the association to challenge the order regarding the service conditions of individual employees came up for consideration before a Division Bench of this court in TAMILAGA ASIRIYAR KOOTANI v. THE GOVERNMENT OF TAMIL NADU AND 19 OTHERS (2005 WRIT LAW REPORTER 389) and after considering the judgment of the Supreme Court as well as other High Courts, the Division Bench presided over by His Lordship Mr.Justice Markandey Katju (as His Lordship then was) held that Government Order pertaining to teachers of an educational institution, can be challenged only at the instance of the Head Master or Teacher or educational institution, but the association has no locus standi in the matter. 20. Therefore denial of promotion to the individual officers is a matter to be exposed by the respective officers. The petitioner Union has no locus standi to expose the cause. The correctness of the impugned order can be examined only at the instance of the aggrieved employee and not at the initiative of association. 21. It is not clear as to whether those three officers were really aggrieved and there is not even a whisper in the affidavit https://hcservices.ecourts.gov.in/hcservices/ filed in support of the writ petition to the effect that they have requested the union to take up the matter. It is not as if the individual officers were precluded or disabled from filing the writ petition before this court challenging their denial of promotion. Those officers are all working in the first respondent bank and it is always possible for them to challenge the order denying promotion. Therefore I am of the view that the writ petition at the instance of the petitioner Union is clearly not maintainable and as such it is not necessary to consider the merits of the matter in such a writ petition. 22. The next question is as to whether this court is justified in dismissing the writ petition as not maintainable after admitting the same as early as in the year 2000. 23. In STATE OF U.P. AND ORS. vs. U.P.RAJYA KHANIJ VIKAS NIGAM S.S. (2008(9) SCALE 1), the issue before the Supreme Court was as to whether a writ petition can be dismissed at the time of final hearing even though it was admitted originally. The Supreme Court observed that it is neither the legal position nor such a proposition has been laid down, that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. The following paragraph would make the legal position clear. "38. Even otherwise, the learned Judge was not right in law. True it is that issuance of Rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-petition albeit wrongly and granted the relief to the petitioner." 24. The observation of the Supreme Court in U.P.RAJYA KHANIJ VIKAS NIGAM's case with regard to dismissal of the writ petition on the ground of alternative remedy at the time of final hearing in spite of admission of the writ petition, is clearly applicable to the case on hand. Even though the writ petition was admitted, it cannot be said that this court is bound to consider the merits of the matter when the very locus standi of the petitioner Union is under https://hcservices.ecourts.gov.in/hcservices/ challenge. In fact the writ petition was admitted before filing counter by the first respondent. In the counter they have taken a specific contention that the writ petition in a matter like this is not maintainable at the instance of the Union. Therefore I am of the view that the admission of the writ petition earlier is not a bar for rejecting the same on the ground of maintainability. 25. In the result, the writ petition is dismissed. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar Tr/ To The Chairman Pandyan Grama Bank Administrative Office Kandapuram Street Virudhunagar-626 001. +One CC to Mr.N.G.R.Prasad, Advocate, Sr.56888 +One CC to M/s.PVS Giridhar & Sai Associates Sr.56641 W.P.No.8010/2000 MBS (CO) SRA 02/11/2009 https://hcservices.ecourts.gov.in/hcservices/