THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.NOs.34824 & 32752 OF 1998 COMMON ORDER: Both these writ petitions raise common questions and hence, they are heard together and are also disposed of by this common order. The writ petitioners are initially engaged in the service of the respondent State Bank of Hyderabad ( ‘the Bank’, for short), as Clerks. The Bank has taken a policy decision to introduce computerization and automation in its systems and consequently, created certain posts called ‘Programmer-cum-Computer Operators’. These posts were included in Junior Manager Scale-I Officer cadre. Such of those, who have been promoted to these posts of ‘Programmer-cum-Computer Operator’, are rendered eligible for further promotion to the next higher grade known as ‘Middle Management Scale-II’ (MM-II). On 30-01-1990, the Bank has announced its promotion policy for promotions from Clerical cadre to the ‘Programmer-cum-Computer Operators’ in JMG-I. The eligibility criteria and other terms and conditions for considering promotion to the said JMG-I, have been annexed to the promotion policy announced on 30-01- 1990. One is required to possess graduation qualification and also required to put in four years of service as Data Entry Operator. Paragraph No.5 of the annexure indicated that the vacancies identified in the ‘Programmer-cum-Computer Operator’ cadre will be filled up to the extent of 20% by direct recruitment and 80% by considering the available clerical cadre employees. This policy has made it clear that in regard to maximum number of chances and debarment from the promotion thereafter, the extant guidelines applicable for promotion to Scale-I would be applicable even to this cadre. The case of the writ petitioners is that notwithstanding the availability of the vacancies and availability of the qualified candidates working in the Bank, the process of promotions has been completed only in the year 1992 and the writ petitioners came to be promoted by an Order passed on 29-07-1992. The writ petitioners have all joined the promoted cadre and they had been functioning as such. On 30-03-1998, they filed a detailed representation before the Bank pointing out that due to the delay of promoting them only during July 1992, which was 2 ½ years later to the announcement of the promotion policy on 30-01-1990, the delay had worked to their detriment in the matter of further career promotion. It is pointed out that during the years 1988, 1989 and 1990, 13 officers have been recruited to this very cadre directly, while during the corresponding period, 52 vacancies were sought to be filled up by the method of promotion of the internal candidates. But however, the internal candidates were promoted only on 29-07-1992 and consequently, they were rendered ineligible to compete for promotion to MM-II Scale, as the requisite length of service needed for such promotion was seven years. Therefore, according to the learned counsel for the writ petitioners, if only the promotion policy dated 30-01-1990, has been acted upon promptly, the writ petitioners would have become eligible for being considered for promotion to MM-II Scale in the years 1997 and 1998, whereas they were only rendered eligible for such promotions during the year 1999. In the interregnum, the directly recruited officers, who had been so appointed, became eligible for being considered for such promotions. Consequent to this delayed exercise, it is the writ petitioners, who have suffered the loss of consideration for promotion during the years 1997 and 1998. The learned counsel for the petitioners submits that when vacancies have already been identified in the cadre of Programmer-cum-Computer Operator, in JMG Scale-I and the policy decision has also been announced as on 30-01-1990, identifying the sources and methods of recruitment and having filled up some of the posts to the extent of 20% by direct recruitment method, there is no justification for the Bank to have denied or delayed the promotions to the internal candidates during the years 1990 and 1991 and there is no justification, whatsoever, for completing the selection process only in the month of July 1992, which ultimately fetched them the promotions. Therefore, the learned counsel for the writ petitioners contends that the issue relating to the promotion of internal candidates need not have linked up with any other factor, at any rate, when the direct recruitment is resorted to by the Bank from the open market. He, therefore, contends that, at least, to the extent of number of vacancies that became available in Programmer-cum- Computer Operator cadre for the source of promotion during the years 1990 and 1991, such of those candidates, who have been selected for promotion in July 1992, shall be treated to have been so promoted with retrospective effect, so that they will be able to be considered for further promotion after completion of seven years of service from that notional date. In other words, their cases would have fallen for consideration to MM-II Scale during the years 1997 and 1998. Per contra, Sri G. Vidyasagar, learned counsel appearing for the Bank would submit that the promotion policy, which was commenced on 30-01-1990, was exclusively meant to regulate the process of recruitment to the specialist category of Programmer-cum-Computer Operator. As high as 80% of the vacancies are set apart to be filled in by way of promotion of internal candidates and only 20% are thrown open for direct recruitment for the open market, but nonetheless, the criteria for selection of internal candidates has taken considerable time to be finalized. Further, the policy of computerization and automation in the bank could not be implemented on the same magnitude and scale, which was initially conceived. Therefore, for certain operational reasons, the delay had occasioned in the matter of finalization of the promotions. The direct recruitment, which has been resorted to in the interregnum, being to a limited number of posts, there was not much difficulty for the Bank to utilize the services of such directly recruited Programmer-cum-Computer Operators. Therefore, he contends that Orders of promotion, which were granted on 29-07-1992, to the extent of availability of vacancies through the sources of promotions during the years 1990 and 1991, cannot be revised or rendered to have been ordered with retrospective effect. The learned counsel submits that the promotion policy, with regard to the officer posts in the general line, i.e., regulating the promotions from Officers in JMG Scale I to MM-II, which was announced much prior to January 1990, has prescribed that the vacancies, which are identified as required to be filled in, would be undertaken to be filled in within the next six months period. A similar provision of policy is missing with regard to the posts of Programmer- cum-Computer Operator in JM-I. Therefore, conditions or terms contained in the policy relating to the general promotions should not be telescoped into the promotion policy dated 30-01-1990. The learned counsel for the Bank would further submit that mere availability of vacancies does not create a legal right in any candidate to seek either appointment or promotion, until and unless the Bank requires the same to be filled in by the appropriate method of recruitment. It is further contended that promotions undertaken to MM-II Scale are regularly undertaken and, therefore, the normal criteria of rendering only those Officers, who have completed seven years, as eligible is a very relevant criterion for such promotions and by the present demand of seeking retrospective effect for the promotions effected on 29- 07-1992, an important qualification relating to the experience required to be eligible for promotion to MM-II, will get compromised and hence, it is impermissible. The learned counsel would further submit that it is a settled principle of law that no person can claim seniority with retrospective effect only on the ground that the vacancy or post has become available with effect from such a date. One has got to reckon the actual service from the date of the promotion itself, for purposes of seniority. Upon taking a decision relating to computerization of the operations of the Bank, a policy decision has been announced on 30-01-1990. It is true that the sources of recruitment to the said posts have been identified as 20% from direct recruitment and 80% from promotions. It is also noticed that during the years 1990, 1991 and 1992, some of the posts were also filled in by the method of direct recruitment. But however, if the Bank has taken little more time than is normally expected of it, in the matter of finalization of the procedure of finding out the selection criteria from amongst the eligible clerical staff, the Bank cannot be faulted. It may be true that it had taken a little longer time than is really needed, but that factor alone cannot compel the Bank to grant promotions with retrospective effect. The general conditions contained in the promotion policy regulating the general line that the vacancies are required to be filled in within a period of six months, is a policy of the Bank. It is open to the Bank to fill up vacancies in quick time so as to avoid loss of productivity due to non- filling of the vacancies. Some times, the operational requirements may cause delay in the process as well. Hence, the Bank cannot be faulted completely if it had not filled up the posts of Programmer-cum-Computer Operators within six months period as per the announcement of the promotion policy on 30-01-1990. There is neither any legal principle nor any enforceable right for a candidate, who has been actually promoted on 29-07-1992, to seek revision of his promotion date with retrospective effect; the date on which the vacancy, in fact, became available. In the absence of any such enforceable right, no writ of mandamus can be issued. The learned counsel for the Bank Sri Vidya Sagar has submitted at the Bar that further promotions to MM-II and MM-III have already been effected and, in fact, some of the writ petitioners were also promoted during the pendency of this writ petition. I am not in a position to uphold the plea canvassed on behalf of the petitioners. Therefore, both the writ petitions fail and they are accordingly dismissed. No costs. --------------------------------- Nooty Ramamohana Rao, J mrk 18th November 2009