IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 215 of 1985 with SPECIAL CIVIL APPLICATION No 216 of 1985 with SPECIAL CIVIL APPLICATION No 217 of 1985 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SURESH S SARAIYA Versus BANK OF BARODA -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 215 of 1985 MR KM PATEL for Petitioner MR DARSHAN M PARIKH for Respondent No. 1 MR BHARAT J SHELAT for Respondent No. 2, 3 2. Special Civil ApplicationNo 216 of 1985 MR KM PATEL for Petitioner MR DARSHAN M PARIKH for Respondent No. 1 MR BHARAT J SHELAT for Respondent No. 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 11/02/2000 COMMON ORAL JUDGEMENT #. These petitions have been filed by different petitioners by obtaining permission of the Court to file the same in representative capacity under Order 1 Rule 8 of Civil Procedure Code. The petitioners are the officers of the Bank of Baroda. They have filed the aforesaid petitions under Articles 14 and 16 of the Constitution read with Article 226 of the Constitution challenging the Regulation 7 of the Bank of Baroda (Officers) Service Regulations, 1979 [ hereinafter referred to as `the Regulations' ]. #. The petitioners abovenamed have been employed in the employment of the respondent. So far the first two petitions are concerned, the petitioners were employed as Clerk whereas, the petitioner of third petition was appointed as Officer directly. #. So far as the first two petitions are concerned, the petitioners were appointed as Clerks and they were promoted in the cadre of Officer. There is no serious dispute about the aforesaid facts of the case. The petitioners have contended that till November, 1980 when standardisation of service conditions of the officers was carried out pursuant to the "Pillai Committee Report", the respondent bank had the policy entitling an employee to switch over to next higher pay scale on reaching the last stage in pay scale notwithstanding his designation. #. The petitioners have contended that before the standardisation of service condition in November, 1980, there was no promotion policy so far the respondent bank is concerned. That the pay scale for clerical staff from 1-7-1969 to 31-8-1978 was Rs.170 - Rs.550/-. That the pay scales of the clerical staff were revised by by-parte settlement with effect from 1st September, 1978. That the revised pay scale for the clerical staff was fixed at Rs.325 - 1040/-. That as against the pay scales of clerical staff as above, the pay scales of officers in Grade F, E, D and C prior to the appointed date were :- Grade Scale F 350-25-450 E 480-30-600 EB D 640-40-800 EB C 850-50-1050 EB #. The petitioners have contended that when a clerk was promoted to the Officer's cadre, his fitment in the corresponding pay scale in the officer's cadre was carried out after adding Rs.91/- in his basic pay. That the efficiency bar in grades E. D, C and B for officers were never implemented in respect of any officer and they were allowed to switch over to the higher grade after reaching the maximum stage in a particular grade. As a result of that, when the clerk who is promoted as an officer subsequent to an officer who is recruited directly or promoted earlier drew more basic salary than the salary of his senior. An example has been given in the petition which reads as follows :- "If X joins service as clerk earlier than Y, but if Y is promoted as Officer earlier, then basic salary of X would be more than Y although he is junior to Y as Officer. However, in the cadre of officers Y would be senior and X would be junior having regard to their respective dates of entry in the cadre of officers." #. That the service condition of the officers including their pay scales, promotions and seniority came to be standardised in November, 1980. That the revised pay scale were given effect from 1-7-1979. That standardisation was implemented by enacting the Regulation Code namely "Bank of Baroda (Officers) Service Regulations, 1979". That the regulation 4 stipulates 7 different pay scales grouped under four different grades of officers and they are Junior Management, Middle Management, Senior Management. That rest of the grades comprise of two pay scales. That Regulation 6 provides for categorisation of every post of officer in any one of the grades or scale having regard to the responsibilities and functions exercisable by such officers. That for the said purpose, every branch of the respondent bank was required to be classified as small, medium, large or very large branch depending upon the volume of business. That the Central Government had issued guidelines in terms of Regulation 6 for categorisation of officers. That the Middle Management Grade in which the petitioner ought to have been fitted included the Managers of large and medium sized branch and the second line officers in large branches as well as region / area / division district and like officers. #. The petitioners have contended that at the time of standardisation in November, 1980, the petitioner of Special Civil Application No. 216 of 1985 was drawing salary of Rs.570/- in pay scale of Rs.480/- to Rs.600/-. That more than 300 officers junior to the petitioner were fitted in the Middle Management Grade Scale II in the pay scale of Rs.1200 - 2000/-. That about 20 clerks who were promoted as officers just 9 days prior to the appointed date of standardisation were fitted in the Middle Management Grade Scale II. The petitioner has refered and relied upon seniority list of officers in the Middle Management Grade Scale II. #. The petitioners have further contended that since more than 300 officers junior to the petitioners discharging the same or similar duties were fitted in the Middle Management Grade Scale II, the petitioner ought to have been fitted in the said Grade and Scale. However, the petitioner was given fitment in the Junior Management Grade Scale I having pay scale of Rs.700 to Rs.1800/-. That on account of standardrisation as above, anomaly has been created in such a way that the petitioners have been made subordinate of a person who had in fact worked under him. The petitioners have given example of Shri C. C. Chokasi who had worked under them and who was very much junior. However, on account of standarisation of cadres in officers, said Mr.Chokasi has been made senior to the petitioners according to the case of the petitioners. #. The petitioners claims that on account of the aforesaid anomaly, the petitioners had preferred an appeal under Regulation 13 before the Deputy General Manager (Personnel) which was ultimately turned down by the said officer. ##. The petitioners further claim that during the pendency of the said appeal, the petitioners appeared for the departmental examination for the promotion to Middle Management Grade Scale II in November, 1982 subject to the result of the appeal. ##. The petitioners have therefore challenged the order of posting and also fitment given by the respondent in Junior Management Grade Scale I by way of Special Civil Application No.4963 of 1983. But the learned Single Judge upheld the order of posting. However, with reference to the grievance of the petitioners as to the fitment, the learned Single Judge directed the respondent Bank to decide and dispose of the appeal of the petitioners against his fitment by February 28, 1984. Thus, the said Special Civil Application was accordingly disposed of at admission stage on 26th December, 1983. ##. The Letters Patent Appeal No.34 of 1984 against the order of the learned Single Judge filed by the petitioners was also dismissed by judgment and order dated 20th March, 1984 since the petitioners were brought back to Baroda zone from Calcutta Zone. ##. The petitioners claim that their departmental appeal has been turned down by the department saying that whatever done by the respondent was done in accordance with policy of the respondent. ##. That thereafter the respondent bank had issued a circular dated 14-2-1984 inviting applications for promotion to Middle Management Grade Scale III realising that the remedy will have to be provided against improper and unreasonable fitment flowing from Regulation 7. That even the policy was changed contrary to the guidelines issued by the Central Government. ##. The petitioners claim that Regulation 7 does not answer the requirements of Article 14 and 16 of the Constitution of India and it provides arbitrary, irrational and unreasonable criteria for fitment. It altogether ignores the duties and responsibilities and the seniority of the officers and therefore, they have contended that Regulation 7 is violative of Articles 14 & 16 of the Constitution of India. ##. Is t is further contended that the officers who were junior to the petitioners prior to the standardisation have been given fitment in the Middle Management Grade Scale II while the petitioners have been given fitment in Junior Management Grade Scale I and therefore, the petitioners have been subjected to injustice on account of the aforesaid anomaly created because of the standardisation policy. The petitioners have therefore, challenged the said policy and have prayed to declare Regulation 7 of the aforesaid Regulations as ultra vires Articles 14 and 16 of the Constitution of India. The petitioners have also prayed for issuance of a writ of mandamus and / or certiorari or any other appropriate writ, order or direction for quashing and setting aside the order of the Appellate Authority which is at Annexure-F to this petition. The petitioners have further prayed for direction to the respondent bank to give appropriate fitment to the petitioners to the Middle Management Grade Scale II with effect from 1-7-1979. It is also prayed that the respondent bank be directed to promote the petitioners to Middle Management Grade Scale III pursuant to the interview held in May, 1984 and have also prayd that other reliefs as may be deemed fit by this Court may also be granted. At the initial stage, `Rule' was issued and the petition was admitted. Leave to amend the petition was also granted on 21st January, 1985. The respondent made appearance on receipt of the notice of Rule. The affidavit in reply has also been filed. ##. It has been mainly contended on behalf of the respondent that regulations are perfectly legal and valid and same have been issued in accordance with guidelines issued by the Central Government. It is further contended that no policy can satisfy the sentiments of all persons from different corners and the petitioners have not been able to make out any case of discrimination. That therefore, the petitioners have no case in the present matter and therefore, their petitions be dismissed with costs. ##. I have heard the learned advocates for both the parties and have perused the record. Since all the petitioners carry similar and identical legal and factual disputes, they have been heard together and are being disposed of by this common judgment. ##. The original petitioner of Special Civil Application No.215 of 1985 has died and his legal representatives have been substituted in his place in terms of order passed in Civil Application No. 5449 of 2000 in Special Civil Application No. 215 of 1985. I may make it clear that whenever I refer petitioners, it would mean (original) deceased petitioner of Special Civil Application No.215 of 1985 and the petitioners of other two Special Civil Applications. ##. Undisputedly, the deceased petitioner of Special Civil Application No.215 of 1985 and the petitioner of Special Civil Application No. 216 / 1985 were initially appointed as clerk on 3-5-65 and 17-5-66 respectively. They were promoted to the officers' rank on 1-6-1970 and in May, 1971 respectively. The petitioner of Special Civil Application No. 217 of 1985 was directly appointed in Officer's rank on 17-4-1971 as an Agricultural Officer. These are the undisputed facts. ##. In fact, the factual aspects as aforesaid are not at all disputed before me even during the course of arguments. ##. Before going to the merits of the case, I may make it clear that these petitioners appear to have been filed by these three petitions in their personal and individual capacity at the first instance. At the same time, it also appears that the petitioners submitted applications for permission to file the petitions in representative capacity under Order 1 Rule 8 of Civil Procedure Code., 1908. Necessary orders appear to have been passed and notices appear to have been published in newspaper. However, none appeared before the Court in response tot he public notices. Two employees likely to be affected by the orders, if any, which and if may be passed by this Court in these petitions in favour of the petitioners, have been joined as co-respondents. Mr. B. J. Shelat seems to have made appearance on their behalf. Yet, none appeared on their behalf as and when the petitions were called out for hearing and were actually heard after being duly notified for hearing more than once. Therefore, I have heard the learned advocate for the petitioners as well as for the Bank. ##. The issue which has arisen before me is a very short one. It is the petitioners' contention that though they were already in the officers' cadre and rank since 1970-71 as aforesaid and though several other persons promoted late in the officers' cadre and rank after 1970-71 and as such were junior to the petitioners in the Officers' cadre, were given fitment in a position higher than that of the petitioners, as a result of which, the juniors have become seniors to them. ##. It would be worthwhile to refer to Regulation 7 which has been challenged in this petition. It is placed at page 19 in Special Civil Application No.217 of 1985 and it can be reproduced as follows : 7. Subject to the provisions of regulation 6, the various posts of officers in the Bank on the appointed date shall be categorized as specified in the table below:- ======================================================== Posts/Grades of Officers immediately Grade in which prior to the 1st July, 1979 placed. -------------------------------------------------------- (i) General Managers Top Executive Grade Scale VII (ii) Deputy General Managers Top Executive Grade and Chief Legal Adviser Scale VI (iii) Assistant General Senior Management Managers Grade Scale V (iv) Regional Managers, Senior Management Grade Chief Managers and Scale IV Deputy Chief Officers (v) All Assistant Chief Middle Management Grade Officers and all Offi- Scale III cers and all officers in `A' and `B' Salary Grades (Other than those fitted in Senior Management Grade/Scales IV & V ) (vi) All Officers in `C' & Middle Management Grade `D' Salary Grades Scale II (Other than those fitted in Middle Management Grade / Scales III and above ) (vii) All Officers in `E' & Junior Management Grade `F' Salary Grades Scale I. -------------------------------------------------------- The Assistant Chief Officers as on the appointed date will rank first in Middle Management Grade Scale III for the purpose of seniority over the others in that grade. Provided that any difficulties and anomalies arising out of the above categorisation shall be referred to a Committee consisting of the Managing Director and such other persons as may be appointed by the Government for this purpose for its decision. " ##. On the other hand, the learned advocate for the respondent bank contended that the aforesaid regulations have been framed by the respondent bank on the strength of the guidelines issued in this behalf by the Union of India. The said guidelines have been produced in Special Civil Application No. 217 of 1985 at Page 17 and the said guidelines can be reproduced for ready reference as follows :- "GUIDELINES ISSUED BY THE GOVERNMENT IS TERMS OF REG : 6: The categorisation of posts in existence on the appointed on the appointed date shall be done keeping the following criteria in mind : (i) The top executive grade would normally include all executive under the Managing Director such as General Managers, Joint General Managers, Deputy General Managers etc. The main criterion for this categorisation will be their share in the Policy making Review and Control functions of the Bank as a whole. (ii) The Senior Management grade would include Assistant General Managers and heads of functional departments in the Head Office exercising either operational or advisory responsibilities in both, policy-making and areas reserved for Head Office functions. Officers having full functional responsibilities for certain large geographical areas with supervision over a sizable portion of the Branches of the Bank, Managers of exceptionally large Metropolitan Branches and the principal officer responsible for Training will also be at this level. (iii) The Middle Management grade would include Managers of large and medium size branches. Second line officers in large branches as well as Region / Area / Division / District and like officers will also fall in this category. (iv) The Junior Management grade would comprise all other officers. It would include Managers of small branches and pay offices, Accountants or second line officers in small and medium branches and other offices. (v) In the cases of experts / specialists like Economists, Statisticians, Law Officers etc. as the role of all these officers vary from Bank to Bank, the grades of these officers will have to be determined by the Board on the basis of their experience, expertise and standing in their respective professions. (vi) The categorisation of posts as on the appointed date in each of the grades and scales (including that of the experts / specialists) should be done in such a manner that as far as possible the aggregate of basic pay and D.A. of an official in the new scale bears a reasonable relationship to the aggregate of basic pay and D.A. drawn by an officer immediately prior to the appointed date. (vii) Regarding classification of branches for the purpose of categorisation of Managers, the following norms shall generally be adopted. EXCEPTIONALLY LARGE BRANCHES : Average aggregate deposits and advance of Rs.10 crores and above. LARGE BRANCHES : Average aggregate deposits and advances of Rs.5 crores and above but below Rs.10 crores. MEDIUM BRANCHES : Average aggregate deposits and advances of Rs.1 crores and above but below Rs. 5 crores and the principal branches at District Headquarters / State Capitals. SMALL BRANCHES : All others. The bank may, having regard to special circumstances obtaining at any branch, revise the gradation upwards or downwards as the case may be, for such branch. " ##. These are material documents which have been referred and relied upon by the parties for the purpose of decision in the matter. ##. Now it is the contention of the aforesaid petitioners that the fitment has been done in such a way that the officers who were senior in cadre and rank have become juniors and those who were junior have become senior. That this disparity has been created on account of the aforesaid regulation framed by the respondent bank. As against this, the learned advocate for the respondent bank has very vehemently contended that the respondent bank has framed the rules and regulation in accordance with law and guidelines issued by the Central Government and there is nothing wrong with those guidelines. It is also argued on behalf of the respondent bank that when new formula has been framed then in that event such new policy and such new formula may not be in position to satisfy all the officers and employees of the respondent bank. That some persons might have to suffer and some persons might gain also. It is therefore his argument that unless it is shown and proved that the rules framed by the respondent bank are not reasonable or rational then in that event it would not be just and proper to assail those rules on the ground that the petitioners abovenamed have been put to loss on account of enactment of a new policy and new rules. It is not difficult to agree with the arguments advanced on behalf of the respondent bank that if the rules are rational or reasonable then in that event, it may not be possible for the Court to interfere with those rules which are based on the policy of the respondent bank. The mater of policy is afterall a matter of discretion of the respondent bank and the court would not and should not interfere with such policy matter unless it is noticed that the policy is not rational and reasonable. ##. With a view to substantiate the said arguement, the learned advocate for the respondent bank has cited certain decisions. The first is STATE OF RAJASHTAN AND ANOTHER VS. AMRITLAL GANDHI AND OTHERS (1972) 2 S.C.C. 342. There the appellant had introduced a new pension scheme with cut-off date. The contention of the respondent was that there could not be any cut-off date. That if a cut-off is introduced, then it would introduce discrimination between the employees in service on or after the cut-off date and those who have retired before the said date. There it was held that for the purpose of fixation of cut-off date paying capacity of the appellant State was relevant consideration and therefore, it could not be said that the cut-off date has been fixed arbitrarily. ##. Almost similar view was adopted in STATE GOVERNMENT PENSIONER' ASSOCIATION AND OTHERS VS. STATE OF ANDHRA PRADESH, AIR 1986 SUPREME COURT 1907. There also provisions for payment of larger amount with prospective effect from specified date in respect of gratuity was announced and it was held that this formula is not hit by the provisions contained in Article 14 of the Constitution of India. There the High Court had considered the same to be shocking and was carried away by the fact that an employee who retired even one day before the enforcement of the upward revision would not get the benefit if the specified date of enforcement was not affected by striking down the relevant provision. The Supreme Court has observed that in all cases of prospective operation, it would be so. The Hon'ble Supreme Court further observed that just as one who files a suit even one day after the expiry of limitation would lose right to sue, one who retires even a day prior to enforcement of the upward revision would not get the benefit. This cannot be helped. The Hon'ble Supreme Court has also observed in the decision that in order to make it retrospective, so that it applies to all those who retire after the commencement of the Constitution on 26th January, 1950 and before the date of issuance of the notification on 26th March, 1980, the Court will have to rewrite the notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively. The Court further observed that merely striking down the ( or effacing ) the alleged offending portion whereby it is made effective from the specified date will not do so. And this, the Court cannot do. The Court also found that giving prospective operation to such payments cannot, by any stretch of imagination, be condemned as offending Article 14. ##. Then we can take up another decision of STATE OF U.P. VS. U.P.UNIVERSITY COLLEGES PENSIONERS' ASSOCIATION, AIR 1994 Supreme Court 2311. There also pension was liberalized and similar view was adopted in that matter also. There Hon'ble Supreme Court has observed in para 8 "what should be extension of liberlisation should be matter of