^ YM -aJ. QF AT U1 ^5if^}F2ffff3 PKTTTIONT-'H ^.shuu S/b Lale Shri Lddian lal age. /about 36 Oaxipation Servica. R/o Cdony, Eistt; R£fl^ffh(C,G.) x ; .-•" (3.) UmcKiofIndia, Tlirougft S^seteay, Mmistey Qf jr^..'^^^ Firi^ice, Qf ^?^^^ ^?^*' _^ EXvisiQ3i, ysw DsHii. ,..-^^^^ ^- ^^*\^y (2) Gnaiim f-\c.^'^*' t'.1.*^ ^y its Qflice (C.G). r^^. (2) Office 'RDad^m^-h(C.G). '^jl _ /' / ^.^^^«^.-.^..,^.,.,.».^.,,.,,,...,,,,..,._,,.,._^^ HiGHCOURTOjFCHHATTISGARH:BiLASP^ SiNGLE BENCH : HON'BLE SHRi MANiNDRA IVSOHAN SHRtVASTAVA.J. WRiT PETITION N0.2942/2003 PE s1 iiONER: Vishnu Prasad Agrawal Versus RESPONDENTS: Union of india and others FORPRONQUNCiViENTOFORDiER Sd/- Manindra Mohan Shrivastava Judge s Sa S &uea s HSGH COURT OF CHHATTISGARH : BILASPUR Sinaie Bench: Hon'bie Shri Manindra Mohan Shrivastava^L PETITIONER RESPONDENTS WRiT PETITION N0.2942^003 Vishnu Prasad Agrawai Versus Union of India and others WRIT PETITiON UNDER ARTICLE 226/227 OF THE CGNSITUTSON OF IND^ Present: - Smt. Indira Tripathi, counsel for the petitioner. Shri Anand Verma, counsel for respondent No-1/Union of India. Shri Pramod Verma, Senior Advocate wth Shri Amii Verma, counsel for respondente No.2 and 3. ORDER (Passed on ..?.^.. July, 2010) By this petition, petitioner has assaiied legality and vaiidity of order dated 2/9/2003 (Annexure P/1) and order dated 4/9/2003 (Annexure P/2) both jssued by respondent No.2/bank. 2. Facts necessary for adjudication of controversy involved in the petition are that the petitioner is an emptoyee of Raigarh Kshefriya Gramin Bank and working as Ciass-11 Officer. On 5/5/99, a Setter (Annexure P/3) was issued stating ttiat in the matter of promotion of empioyees of the bank, new rutes namely Regional Rurai Bank (Appointmente and Promotions of Otficers and other empioyees) Ruies, 1998 pubiished in the official gazettse on 29/07/1998 shall become appSicabie from the date of such pubiication. However, vide impugned order dated 2/9/2003 (Annexure P/1) and 4/9/2003 (Annexure P/2), it was circuiated that in the matter of promotion again^: 3 vacancies of Senior Manager, Class-ii lying vacant since 01/10/96, promotion shall be made in accordance with earlier rules, nameiy Regional RuraJ Banks (Appointments and Promotions of Officers .;-:r-<^ ^s^m^.. •""^J ^•^',/ ^^^^"' and other employees) Ruies. 1988- A corrigendym with regard to eligibilfty of empioyees (Annexure P/2) was issued on 04/09/2003. 3. Further, case of the petitioner is that a seniority list (Annexure P/6) was issued on 20/11/2000 inviting objections. Objection to the said seniority iist was submitted by one Aten Singh, Branch Manager. The same was not decided nor any amended senSority list was issued. it is the case of the petitioner that according to Reguiation-13 of the Staff Ser/ice Reguiations, 1983, seniority of any officer or any empioyee whose probation has been extended shail be reckoned just below ail the ofRcers or empioyees recruited or promoted in the same bateh aiong with him. But in the case of one officer, Shri R.K.Verma, whose tenure of semce period was increased, this ruie was vioiated and he was kept at SeriaS No.24 which was objected to by the said Aien Singh, Branch Manager. it is therefore submitted that the list was not finaiised yet, responctente proceeded to fill up 3 vacancies of Senior Manager. Further, case of the petitioner is that in ail 18 vacancies v/ere avaSiable and according to provisions contained in Clause 2 of the 3 Schedule appended to Rules of 1998. the number of candidates to be considered for promotion from OfReer Scaie-i to Officer Scaie-11, being 4 times the number of vacancies avaiiabie for promotion, the petitioner ptaced at serial no.71 ofthe gradation iist (Annexure P/6), was aSso entitied for consideration. 4. Learned counsel for the petitioner contended that once the Rules of 1998 were prornuigated, wStich came into force from the date of its publication j.e. 29/07/1^8, respondent authorities acted iijegaljy in making promotions under eariier rules of 1988 which were superceded. According to learned counset for the petitioner, respondents were obtiged under the iaw to fiil up 3 vacancies in accordance with the provisions contained in the new rutes of 1998 and not accordance with eariier repeaied rutes of 1988. The other argument of learned counsei for the petitioner is that for the purposes of making promotion, gradation iist (Annexure P/6) could not be rnade a basis as severai objections were made, neither these objections were decided nor finai / modified gradation list was issued. The iast submission of tearned counsei for the petitioner is that as 18 vacancies existed, respondents were obiiged to fiiS up ail the vacancjes and it couid not be restricted to only 3 vacancies. 5. Repeliing the contentions of iearned eounsel for the petitioner, it has been submitted by iearned counsei for respondents that vide ejrcuiar dated 15/06/1989, the Govemment of India directed that promotions in respect of vacancies which existed prior to pubSication of the new ruies of 1998 would be affected under the rutes, which existed at the reievant time. The said ctrcuiar was issued on the basis of law declared by the Supreme Court in the case of State of Raiasthan v. R. Davai and others. (1997) 10 SCC. 419. As the 3 vacancies existed prior to commencement of new Ruies of 1998, respondents did not commit any iliegalifry in proceeding to fili up those vacancies in accordance with the provisions contained in Rutes of 1988. it is submitted that the petitioner did not raise any objection with regard to correctness and validtty of the gradation list ventiiating any grievance wth regard to his placement at Seriai No.71 in the said gradation list and therefbre at his instance, chailenge to the validity of gradation iist is not maintainable. More so, irrespective of the decision, one way or the other, on the objection raised, petitioner's seniority positjon is not affected. it is aiso submitted that gradation list was issued ?n the year 20CX) and objections were invited on or before 15/02/2000. On 15/01/2000, petitioner ,,<^?m^ .^y^"^. fc ^^-€ ^%?^^" having not raised any objection nor having challenged the said iist, chailenged to the same after morethan 3% years, is liable to be rejected on the ground of delay. Last submission of leamed counsel for the respondents is that only 3 vacancies were thrown open for promotion as they e)dsted prior to promulgation of the Rules of 1988. Petitioner's case would be considered as and when some more vacancies are decided to be fiSied up and petitioner has no right to seek issuance of direction that ali existing vacancies shouid be fiiied up together as there is no vested rsght to be promoted. 6. i have considered the rivai contentions made by teamed counsei for the parties and perused the records. 7. jn the retum filed by tfie respondents, contradictory statements have been made. in para 3 ofthe return, it has been stated - ".......The answering respondent has promoted 3 persons to ttie post of MM-!! from the post of OJM and a!l these 3 poste pertains to the new promotion poSicy of 1998, and therefore the new rules of 1998 are not applicabte as the posts are prior to the commencement ofthe new ruSes." In para 8, foliowing has been stated - ".......it is submitted by the answering respondent that the 3 posts which is to be filled are prior to 1998 and therefore for fiiiing these poste, the o(d rules of 1888 woutd be appSicabte and not the new rules of 1998. Accordlngly. Annexure P-1 & P-2 dated 2/9/2003 & 4/9/2003 were issued by the bank." in para 7, it has been stated - ".......It is submitted by the answering respondent that the promotion ofthe 3 vacant posts have been made in accordance with the promotion ruies issued by the Government of iradsa on 29/09/1998 (Annexure R-2-1)." ^^ i :^.^'. ^-^- ^ i' ^' J in para 10, jt has been stated - "......it is submitted by the answering respondents that the 3 posts which are the subject matter of th®present writ petition perteins to prior to the year 1998 and therefore these poste wiiS be filled ih accordance with the old rutes of 1988. So far as th© other remaining posts are concerned (about 24 and not 18 as submitted by the petitioner) wi'ii be fiiled in accordance with the nev/ rulss of 1998. The posts prior to 1998 and after 1998 cannot be clubbed together and wii{ be govemed by definite rules." In para 11, it is stated - "......It is submitted that the ruies are being applied strictjy in accordance with law and as per the availability of the vacant posts, prior to 1998 and after 1998. it is submitted by the answering respondent that the 3 posts which are the subject rnatter are all prior to 1998 and this fact is clear from the document Annexure R-2-2 and Annexure R-2-3. It is further submitted that the Government of India has made it very ctear that the poste which are lying vacant prior to 1998 will be governed by oid ruies and not by new ruies of 1998. A copy of the instructions m this respect dated 15/06/99 is bejng annexed herewith as Annexure R-2-4. The Government of india has issued these direction in view of the judgment of the Hon'bie Apex Court and this fact has also been mentioned in the letter dated 15/06/99." 8. During the course of arguments, ieamed counsel for the respondents ciarified by stating that at one or two piaces, due to typographicai mistake, 1998 has been mentioned as 1988. Learned counsei for the respondent draws attention of this Court to impugned Setters dated 2/9/03 (Annexure P/1) and 4/09/03 (Annexure P/2) and various categoric averments made in paragraphs 6, 10 and 11 to submit that promotions of the 3 vacancies stated to be made in accordance with the Rutes of 1988 and not the Rules of 1998. It is the case of the petitioner also that the promotions are being made by applying Rules of 1986 and not the Ruies of 1898. ^ai»*a^SiTir ilw Un 9. A perusai of circular dated 15/06/1^ of the Government of india, Ministry of Finance, Department of Economic Affairs (Banking DMsion) reveaSs that directions were issued to the effect that promotion in respect of the vacancies existed prior to the publication of Rules of 1988 wouid &e effected under the ruies which existed at the relevant time. This direction was issued in view of the Saw laid down by the Supreme Court in ttie case of State of Rajasttian (Supra) wherein it was heid- "8.........This Court has specificaljy taid that the vacancies wh'ich occurred prior to the amendment of tiie Rules would be governed by the original Ruies and not by the amended Ruies. Accordingly, this Court had held that the posts which fell vacant prior to the am©ndmentof the Ruies would be govemed by ttie originai Ruies and not the amended Rutes. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filied in accordance with the law existing as on the date when the vacandes arose." it is therefore cfear that the vacancy which existed prior to coming into • force of the Rules of 1988 were required to be filled up by following the earSSer Ruies of 1988 and not the Rules of 1988. The contention of iearned counsei for the peiitioner in this regard therefore has no merit and iiabie to be rejected. 10. From the perusal of the gradation iist (Annexure P/6) which was published on 20/11/2000, it is reflected that petitioner is piaced at Serial No.71. Though the objections were invited on or before 15/02/2000, there is no material on record to show that the petitioner ever raised any objection with regard to his ptacement in the seniorify iist. There is no averment in the petition to the effect that petitioner ever raised any objection to the correctness and validity of the seniority list. !t appears that one Alen Singh, Branch Manager had been raising objections. However, that would not give the petition locus, to challenge the gradation list espousing case of such Alen Singh. There is neither any averment in the petition ^ \~%J^ nor any material on record ttiat the said ASen Singh approached any Court of iaw to chailenge the iegality and vaiidity of the seniority Jist. Petitioner has aiso not raised any dispute with regard to correctness and validity of seniorifry iist and it was oniy when the letters dated 2/9/2003 and 4/09/2003 (Annexures P/1 and P/2 respectiveiy) were issued, the petitioner has raised the same before this Court. 11. in the considered opinion of this Court, for the aforesaid reasons chalienge to legality and validity of the process of promotion on the ground that seniority list was illegal, cannot be sustained and is therefore rejected. Once, it is heid that for the purposes of making promotions to 3 vacancies, Rules of 1988 alone couid be applied and not the RuSes of 1998, the daim of the petitioner for consideration of promotion against the 3 vacancies fails to the ground. If, for the sake of argumente, it is assumed that the zone of consideration comprises 4 times the number of vacancies, the petitioner wouid not fali within the zone of consSderation. He has been placed at Serial NoJ1 in the gradation list which is not in dispute. 12. Last contention of iearned counsel for the petitioner is that as there were 18 vacancies, they ought to be filled up by consiciering eiigibie ofRcers for promotion. Respondents in their return have stated that 24 vacancies of MiddSe Manager Ctass-11 are lying vacant and as and when further promotions are made, petitioner's case would atso be considered in accordance with the provisions in Ruies of 1998, as friese vacancies reFated to the period after 1998. The petitioner has no enforceabie right to be promoted. it is only the right to be considered for promotions as per ruies which could be enforced. Either Rutes of 1988 or the Rules of 1998 did not create any obligation on the employer to fill up A "'-.''^ 'iJ .^^ ail the vacancies within a stipuiated time from the date of occurrence of vacancy. There is no obSigation under the aforesajd rules to hoSd DPC for the purposes of fijling poste within any stipulated period from the date of occurrenee of vacancy. The vacancies are filled up depending upon the requirement assessed by the employer. Therefore, no direction can be issued to the respondents to fiji up all the vacancies at one stroke. At the time of arguments though a query was raised as to whether promotions were subsequentiy made, no definite statements were made with regard to present status by the counsel for either parUes. However, respondents have stated that as and when the remaining vacaneies are fslted up, the case ofthe petitioner wiSI be considereci in accordance with relevant rules. 13. S do not find any merit Sn this case. The petition deserve to be dismissed and is accordingiy dismissed. There shall be no order as to costs. Sd/- Manindra Mohan Shrivastava Judge Dyy?jLi