LPA575/2010 Page 1 of 10 * IN THE HIGH COURT OF DELHI AT NEW DELHI + LETTER PATENT APPEAL NO. 575 OF 2010 Punjab & Sind Bank ....Appellant Through Mr. S.K. Taneja, Sr. Advocate with Mr. Jagat Arora, Advocate. VERSUS Rakesh Mehta & Ors. ....Respondents Through Mr. S. Chaturvedi, Advocate for respondents No. 1 to 3. CORAM: HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA ORDER % 12.07.2011 Punjab & Sind Bank has filed the present intra court appeal to assail the decision dated 1st July, 2010, passed by the learned Single Judge allowing Writ Petition (Civil) No. 2497-99/2004. 2. The said writ petition was filed by Mr. Rakesh Mehta, Mr. H.S. Tuteja and Mr. J.S. Bawa, respondents No. 1 to 3 herein, who had challenged the seniority list circulated under the cover of the letter dated 28th February, 2003, where the respondents 1 to 3 were shown at serial nos. 13, 14 and 12 respectively and Sukhbir Singh Bhatia, Daljit Singh Kochar, Gurpreet Singh, Nalin Kumar Hazarika, Ritu Malhotra and Balbir Singh, i.e. respondents No. 4, 5, 6, 7, 8 & 9 herein, were shown as LPA575/2010 Page 2 of 10 senior to them. Learned single Judge has quashed the said seniority list and held that the seniority list of Electronic Data Process (EDP, for short) officer cadre as on 31st March, 2001, circulated under the cover of letter dated 22nd December, 2001 was correct. Another direction given by the learned single Judge is that the result of the MMGS-III examination conducted in the year 2002 be declared and if the respondents 1, 2 and 3 herein have cleared the said examination, they should be promoted to MMGS-III cadre w.e.f. 2002-03 and they would be entitled to consequential benefits. 3. The appellant bank vide Staff Circulatory letter dated 10th March, 1997 had informed that they had decided to create a specialist cadre, inter-alia, EDP by way of induction from officers in JMGS-I and MMGS-II and thereafter by way of promotion. Officers in the JMGS-I and MMGS-II, who were desirous of induction into the EDP cadre, were required to fill up the prescribed form. Options were required to be exercised on or before 12th April, 1997. 4. Upon creation of EDP cadre, a seniority list as on 31st March, 2001 was circulated under the cover of letter dated 22nd December, 2001. The respondents 1, 2 and 3 were shown at serial nos. 4, 5 & 3 LPA575/2010 Page 3 of 10 respectively and senior to respondents 4 to 9 herein. However, the said list was superseded by another list circulated under the letter dated 28th February, 2003 and the first three respondents were shown at serial nos. 13, 14 & 12 respectively and respondents No. 4 to 9 were shown as senior to them. The seniority was determined on the basis of appointment/induction in the EDP cadre. Thus the date on which the letter of appointment was issued or the date of induction in the MMGS- II grade in the EDP cadre was the principle or the rule applied by the appellant for determining inter-se seniority. 5. The learned single Judge did not agree with the said principle and in our opinion, the decision of the learned single Judge is correct. 6. The seniority lists circulated under the cover of letters dated 22nd December, 2001 and 28th February, 2003 have been examined by us. The relevant portion of the said seniority lists read as under:- Seniority list circulated vide letter dated 22nd December, 2001 S. No. Name of Officer Date of Birth Educational/ Prof qualification Date of joining Date of promotion in Scale-I Dt. Of Induction in Specialist cadre Present palace of posting 1. 2. 3. Jatinder Singh Bawa 29.11.1953 M.Com.- CAIIB 16.07.1977 26.04.1996 16.09.1997 EC: AMRITSAR 4. Rakesh Mehta 07.02.1953 MSC-COM- DIP- BLIBSC 12.08.1977 26.04.1996 16.09.1997 HO: ZONAL: INS 5. Harbhajan Singh Tuteja 13.08.1951 MCOM- CAIIB-DM 18.09.1975 26.04.1996 16.09.1997 HO:ADVANCE (NPS) LPA575/2010 Page 4 of 10 6. Sukhbir Singh Bhatia 19.9.1953 MSC 20.01.1978 19.08.1997 19.08.1997 ZO: LUDHIANA 7. …….. 8. Daljit Singh Kochar 13.11.1955 MA-CA-IIB- DPM & IR 04.01.1980 19.08.1997 19.08.1997 HO: CREDIT CARD DIVISION 9. … 10. Gurpreet Singh 08.02.1951 MA-ECO 19.01.1977 19.08.1997 19.08.1997 HO:STC, CHANDIGARH 11. Nalin Kumar Hazaria 21.01.1959 MA-ECO- UNIX-C&C++ 31.03.1983 19.08.1997 19.08.1997 ZO: GUWAHATI 12. Ritu Malhotra 22.05.1959 MA-CAIIB- 06.04.1983 19.08.1997 19.08.1997 BO: CHANDIGARH 13. … 14. BALBIR SINGH 20.10.1953 MA-ECO- CAIIB 12.02.1976 19.08.1997 19.08.1997 BO:CHANDIGARH SEC.22-B ………. Seniority list circulated vide letter dated 28th February, 2003 Seniority . No. Cadre FNO Name of Officer Date of Birth Qualifica- tion Date of joining the Bank Date since when in grade/ scale – II Dt. Of Induction in Spl cadre Present palace of posting as on 31.3.2001 1. SM 2328 Sukhbir Singh Bhatia 19.9.195 3 MSC 20.01.1978 19.08.1997 19.08.1997 ZO: LUDHIANA 2. …….. 3. SM 2331 Daljit Singh Kochar 13.11.19 55 MA-CA-IIB- DPM & IR 04.01.1980 19.08.1997 19.08.1997 HO: CREDIT CARD DIVISION 4. … 5. SM 2317 Gurpreet Singh 08.02.19 51 MA-ECO 19.01.1977 19.08.1997 19.08.1997 HO:STC, CHANDIGARH 6. SM 2344 Nalin Kumar 21.01.19 59 MA-ECO- UNIX-C&C++ 31.03.1983 19.08.1997 19.08.1997 ZO: GUWAHATI 7. SM 2343 Ritu Malhotra 22.05.19 59 MA-CAIIB- 06.04.1983 19.08.1997 19.08.1997 BO: CHANDIGARH 8. … 9. SM 2321 BALBIR SINGH 20.10.19 53 MA-ECO- CAIIB 12.02.1976 19.08.1997 19.08.1997 BO:CHANDIGAR H SEC.22-B 10. … 11. .. 12. SM 1863 Jatinder Singh Bawa 29.11.19 53 M.Com.- CAIIB 16.07.1977 26.04.1996 16.09.1997 EC: AMRITSAR 13. SM 1876 Rakesh Mehta 07.02.19 53 MSC-COM- DIP- BLIBSC 12.08.1977 26.04.1996 16.09.1997 HO: ZONAL: INS 14. SM 1956 Harbhajan Singh 13.08.19 51 MCOM- CAIIB-DM 18.09.1975 26.04.1996 16.09.1997 HO:ADVANCE (NPS) LPA575/2010 Page 5 of 10 7. As per the list issued under the cover of letter dated 22nd December, 2001, respondents 1, 2 and 3 were at serial nos. 4, 5 and 3 respectively and the respondents 4, 5, 6, 7, 8 and 9 were shown at serial nos. 6, 8, 10, 11, 12 and 14 respectively. However, as per the list issued under the cover of letter dated 28th February, 2003, the respondents Nos. 1, 2 and 3 are shown at serial nos. 13, 14 and 12 respectively and respondents No. 4, 5, 6, 7, 8 & 9 are shown at serial nos. 1, 3, 5, 6, 7 and 9 respectively. 8. As noticed above, the appellant vide letter dated 10th March, 1997 had invited applications for posts in the Specialist Cadre of EDP. The applications were required to be submitted by a particular date from officers already working in the general cadre in JMGS-I and MMGS-II. A cut-off date was fixed for receipt of applications. Thereafter, applications were processed by the appellant and the appointment letters were issued for induction into the newly created cadre. The date of issue of appointment letter cannot be the criteria to fix inter-se seniority by treating the date of issuance of the letter as the date of induction. If the stand of the appellant is accepted, it will lead to injustice and will be unfair. The fortuitous date on which the LPA575/2010 Page 6 of 10 appointment letter was issued cannot be the basis for fixing inter-se seniority. This aspect has been further elaborated below. 9. Learned counsel for the appellant has relied upon Regulation 18 of Punjab & Sind Bank (Officers) Regulations, 1982. The said Regulation reads as under:- “18(1) Each year the Bank shall prepare a list of officer in its service showing their names in the order of their seniority on an all India basis and containing such other particulars as the Bank may determine. A copy of such list shall be kept at every branch or office of the Bank. (2) Seniority of an officer in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. Where there are two or more officers of the same length of service in that grade or scale, their inter-se seniority shall be reckoned with reference to their seniority in the immediately preceding grade or scale or the previous cadre to which they belonged to in the Bank’s service. Where two or more officers have the same length of service in such preceding grade or scale or such previous cadre their seniority shall be determined with reference to their seniority in the immediately preceding grade or scale or cadre, as the case may be.” 10. Regulation 18(2) talks of seniority of officers in a grade or scale shall be reckoned from the date of appointment in that grade or scale. It also provides how seniority has to be determined in case two or more officers have same length of service in the same grade/scale. The respondents No. 1 to 3, before being appointed in the specialized EDP cadre were already working in MMGS-II grade and were senior to LPA575/2010 Page 7 of 10 officers in JMGS-I. Their induction into specialized EDP resulted in a horizontal movement. On the other hand, respondents 4 to 9 were promoted from JMGS-I in the specialized EDP cadre. The said respondents were not in MMGS-II grade before they were promoted from the lower JMGS-I grade. Thereupon they were appointed in MMGS-II grade. Thus the appellant had wrongly applied Regulation 18(2). 11. The plea of the appellant that the grade or scale referred to in regulation 18(2) means the grade/scale on appointment in the EDP Specialised cadre, cannot and should not be accepted. The date of appointment of the respondents 1, 2 and 3 and respondents 4 to 9 should be reckoned and treated as the same. The date of issue of appointment letter for their induction cannot be the basis. As noticed above, this would be whimsical and unequitable. It would result to giving sanction and accepting that the fortuitous circumstance, the date when the appointment letter in the EDP cadre was issued would determine the seniority. All the respondents were appointed and selected by the same selection process, but some of them were issued appointment letters earlier. There is no explanation or reason why LPA575/2010 Page 8 of 10 appointment letters were not issued on the same day. The appointment letters were issued by the appellant but these were not issued on the basis of any seniority or merit list. 12. Accordingly, the seniority list circulated under the cover of letter dated 28th February, 2003, has been rightly rejected and struck down and the seniority list circulated under the cover of letter dated 22nd December, 2001 has been rightly restored by the learned Single Judge. 13. In 2002, examination for promotion from MMGS-II to MMGS-III was held. Only those who had completed five years in MMGS-II grade could appear in the said examination. Respondents 1 to 3 had appeared in the said examination, but their results were not declared because in the meanwhile the appellant had circulated the seniority list under the cover of letter dated 22nd February, 2003. It is accepted by the appellant that the respondents 1 to 3 had completed 5 years in MMGS grade II in the year 2002. 14. Once the seniority list issued under the cover of letter dated 22nd February, 2003 is set aside, the appellant is required to declare the results of the written examination held in 2002 and consider and examine respondent nos. 1 to 3 for promotion to MMGS Grade III. It LPA575/2010 Page 9 of 10 was admitted by the learned counsel for the appellant during the course of arguments that marks in the written examination are available. As per the recruitment rules placed on record by the appellant, all candidates who obtain a minimum of 35% marks in the written test and not more than 3 – 4 times the number of vacancies, have to be considered for promotion on merit. Performance and job responsibility are the two other aspects which are to be examined. In case respondents 1 to 3 have qualified the written examination, the appellant will examine whether the said respondents should be promoted in accordance with and as per the recruitment rules. It may be noted here that two of the said respondents namely Rakesh Mehta and Mr. Jatinder Singh Bawa were promoted to MMGS-III in the year 2007. The effect of the present order is that in case the said respondents are found fit for promotion, they shall be notionally promoted in 2002-2003. However, the said respondents will not be entitled to back-wages. 15. In view of the aforesaid, the present appeal is disposed of. Direction/decision of the learned single Judge quashing the seniority list circulated under the cover of the letter dated 28th February, 2003 is LPA575/2010 Page 10 of 10 upheld. The appellant will follow the seniority list of EDP officers, circulated under the cover of letter dated 22nd December, 2001. The appellant will also examine whether respondents 1 to 3 are entitled to promotion as per the recruitment rules to MMGS-III in the year 2002- 2003 and if they are found fit for promotion, they will be notionally promoted to the said grade. However, they shall not be entitled to back wages. The appellant will also pay costs of Rs.35,000/- to respondents 1 to 3, which has been imposed by the learned single Judge. Sd/- (SANJIV KHANNA) JUDGE Sd/- ( DIPAK MISRA ) CHIEF JUSTICE July 12, 2011 Kkb