WP(C) 3162/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY Being aggrieved by her perceived denial of consideration of her case for promoti on to Scale - IV and higher positions in service continually by the respondent C ompany, the petitioner seeks judicial intervention for redress. 02. I have heard Mr. N Dutta, Senior Advocate assisted by Mr. I. Cho udhury, Advocate for the petitioner and Mr. TJ Mahanta, Advocate assisted by Mr. PP Dutta, Advocate for the respondent- Company and its officers. 03. An abridged version of the pleaded assertions of the parties wou ld be essential. The petitioner has claimed a brilliant academic background. She was appointed as Assistant Administrative Officer (Generalist) with the respondent Company on 06 .07.1981 as a direct recruit having successfully appeared in the All India Compe titive Examination for General Insurance Corporation Ltd. Following a training, she was posted at Divisional Office, Tinsukia on 22.01.1982 and was confirmed as Assistant Administrative Officer w.e.f. 07.09.1982. She was, thereafter, allowe d to hold the charge of the office of the Assistant Branch Manager and was poste d at Shillong Branch. Subsequent thereto, she was also allowed to hold the charg e of the office of the Branch Manager thereat. In December 1991, she was promote d to the cadre of Assistant Manager and was posted at Regional Office, New Delhi , whereafter on 29.07.1992, she was posted as Divisional Manager at Divisional O ffice VI, Delhi. She claims to have rendered distinguished service and pioneered the Company’s projects undertaken by her. 04. In the promotion policy framed under the General Insurance Busin ess (Nationalization) Act, 1972 (hereinafter referred to as the Act) and as amen ded in 1996, the scales in service, nomenclature of posts and qualifying period of service in the feeder posts for promotion had been set out. The following tab le would project a summary thereof: SCALE CURRENT NOMENCLATURE OF POSTS EARLIER NOMENCLATURE OF POSTS QUALIFYI NG SERVICE REQUIRED IN THE FEEDER POST Scale:III Deputy Manager Assistant Manager Scale:IV Manager Deputy Manager 3 years Scale:V Regional Manager/Chief Manager Manager 3 years Scale:IV Deputy General Manager Assistant General Manager 2 years Scale:VII General Manager 2 years 05. In terms of the above, according to the petitioner, the nomencla ture of the post to which she had been promoted in December, 1991, i.e. Assistan t Manager had been altered to Deputy Manager and she was eligible for the promot ion to the next higher grade/scale on 31.03.1994. In 1997, she was served with s ummons from the CBI Special Court, New Delhi, alleging irregularities during her tenure as Assistant Manager at New Delhi Regional Office in 1994. A criminal pr oceeding was, thereafter, initiated against her being Complaint case No. 15/1997 and formal charge was framed on 16.09.2002. She having moved the Hon’ble Delhi High Court by way of criminal revision petition being No. Crl. Rev. P No.74/2003 , by its order dated 07.07.2006, the charges against her, were quashed. During t he pendency of this criminal proceeding, the petitioner was not accorded any pro motion and her representation dated 02.03.2005 before the Chairman-cum-Managing Director of the respondent Company did not evoke any response. She however, cont inued to render unblemished services to the satisfaction to all concerned. Accor ding to her, juniors in service, meanwhile, were granted promotion by illegally superseding her and though, she continued to ventilate her grievances by represe ntations before the appropriate authorities of the respondent Company, the same remained unheeded. She has contended that though eligible, her case has not been considered for promotion at all in terms of the policy and that her juniors, me anwhile, have been promoted even to still higher grades. 06. The Chief Regional Manager of the respondent Company at Guwahati has affirmed the affidavit-in-opposition filed on behalf of the respondent Nos. 1, 4, 5, 6, & 7. As this counter has been supplemented, thereafter, by addition al pleadings, it would be appropriate to adequately project the stand of the res pondents by assimilating the contents thereof. The respondents have denied the p etitioner’s imputation that she had not been considered for promotion in terms o f the extant policy. According to them, after her promotion to the cadre of Assi stant Manager (now re-designated as Deputy Manager, Scale III) in December, 1991 , she came within the zone of consideration for next promotion i.e. Scale IV in the year 1998, as no promotional exercise had been carried out between 1991 to 1 998. They have stated that since 1990 till 2006, the said policy for officers wa s in vogue governing such exercise and that, thereafter, since 2007, the New Pro motional Policy for Officers, 2006, came into effect. Referring to the processes of consideration of the petitioner’s case for promoti on, the answering respondents have in details set out the stages and the steps t aken in that regard to conclude that as the petitioner could not make her mark o n a comparative assessment of her suitability vis-a-vis the other contending can didates, she could not earn her promotion till date. The respondents have assert ed that the petitioner’s case had been considered since 1998 every year to the e xception of 2004, during which no such exercise was undertaken. In terms of the various parameters contained in the policy, her performance on the basis of the relevant Annual Confidential Reports was duly assayed and in doing so, the factu m of pendency of the criminal case against her was left out of consideration. Th e respondents, however, in their additional-affidavit dated 26.08.2011, in parti cular, have admitted that during 1998 to 2006 her overall performance as assessa ble from the relevant Annual Confidential Reports was outstanding or excellent, pendency of the criminal case against her notwithstanding. 07. The respondents, however, have mentioned that from 2007 onwards the New Promotional Policy for Officers, 2006, has been given effect to, whereun der, a qualifying written examination has been prescribed as a prelude to the se lection process. According to them, in terms of the New Policy, all officers wit hin the zone of consideration are required to qualify in the written examination conducted by the National Insurance Academy, Pune. The respondents have maintai ned that the petitioner, though duly intimated about the conduct of the written examination vide call letters dated 07.05.2007 (for written test on 27.05.2007) and 03.10.2008 (for written test 19.10.2008) did not take the tests inspite of t he knowledge thereof. The answering respondents have not only insisted that the date and venue of written test dated 27.05.2007 had been displayed also in the C ompany’s web portal, which was accessible to the petitioner and that though othe r eligible candidates appeared in the examination, she abstained therefrom witho ut any justification. 08. The petitioner in her reply-affidavit, while reiterating her sta nd of non-consideration of her case by the respondents for promotion also highli ghted that during the relevant period she had not been communicated with any adv erse remark vis-a-vis her performance and thus the relevant Annual Confidential Reports expectedly could not have had any prejudicial impact on her level of sui tability for promotion. According to her, she being eligible to be considered fo r promotion on or after 31.03.1994, the New Promotional Policy, 2006, is not app licable to her. She averred that the call letter dated 07.05.2007 was issued to her at the Regional Officer, Guwahati when she was posted at Divisional Office I II, Guwahati. Vis-a-vis the call letter dated 03.10.2008 also addressed to the p etitioner at the Regional Office, Guwahati, she maintained that it did not reach her as she was, at the relevant point of time, on sick leave and in her home to wn i.e. Shillong. She denied to have received the call letters. According to her , the non-consideration of her case is also writ large from the fact that no vig ilance clearance was sought for by the respondents for her, which is an essentia lity as per the prevalent practice of the organization. This clearance was sough t for by the respondent Company only in December, 2006, whereafter, the CBI gran ted the same on 08.01.2007. 09. Mr. Dutta, has argued that having regard to the point of time si nce when the petitioner was eligible to be considered for promotion to Scale - I V, the New Policy is not applicable to her and therefore the endeavour on the pa rt of respondents to disqualify her on that basis is arbitrary and untenable in law. This more so, as since the attainment of eligibility of the petitioner for promotion she has not been considered in terms of the prevailing policy as on da te, he urged. Without prejudice to the above, the learned Senior counsel has i nsisted that as the call letters for the written examination under the New Polic y had not been served on the petitioner on any occasion, the rejection of her ca se for consideration for promotion on this ground as well is unsustainable in la w and on facts. Profusely, adverting to the parameters set out in the Policy ap plicable to the petitioner for assessment for promotion from Scale - III to Scal e - IV, Mr. Dutta has sought to demonstrate that having regard to the marking pa ttern contemplated thereby, vis-à-vis the essential aspects of evaluation of per formance/suitability, the petitioner’s candidature by no means could have been r ejected. As the maximum marks for seniority as envisaged in the Policy was awar dable to the petitioner, in absence of any adverse remark communicated to her du ring the relevant years, the fluctuating graph of her aggregate tally of marks v is-à-vis, Traits, Performance, Growth Potential based on her Confidential Rolls clearly suggested that the pendency of the C.B.I. case against her had negative bearing on the process of her evaluation of suitability, he urged. Mr. Dutta ar gued that dipping pattern of her aggregate marks in some of the relevant years p er se suggested that either the adverse remarks in her Confidential Rolls though , not communicated to her were taken note of or a higher grade though moderated in the same year was acted upon without offering any opportunity to her to repre sent against the same. The learned senior counsel emphasised that the petitione r’s Confidential Rolls, in the facts and circumstances of the case ought to reve al that the respondents had assessed her suitability for promotion disregarding the pendency of the C.B.I. case pending against her during the relevant years. T his is of considerable significance and absence of any indication to this effect would unmistakably tantamount to non-consideration of her case for promotion in terms of the Policy, he pleaded. Mr. Dutta urged that from the materials on re cord it is apparent that the petitioner’s case had not been considered as per th e Policy and thus the persistent denial of promotion to her is liable to be adju dged illegal, discriminatory and unconstitutional. In support of his assertion, Mr. Dutta placed reliance on the decisions of the Apex Court in 1996(2) SCC 363 (U.P. Jal Nigam and Others vs. Prabhat Chandra Jain and Others); 2006 9 SCC 69(S atya Narain Shukla vs. Union of India and Others); 2008 8 SCC 725(Dev Dutt vs. U nion of India and Others); 2007 14 SCC 641(Union of India and Another vs. S.K. G oel and others); 2008 9 SCC 120(K.M. Mishra vs.Central Bank of India and Others) . 10. As against this, Mr. Mahanta has maintained that the case of the petitioner has been duly considered as per the Policy in force at all relevant times and as she could not meet the desired measure for promotion she could not be provided the same. While admitting that no adverse remark in the petitioner’ s Confidential Rolls for the relevant years had been communicated to her, the le arned counsel submitted that during 1997-1998 she was however counselled qua her performance, whereafter it improved. Mr. Mahanta urged that the petitioner was considered in every year from 1998-2003 and also in 2005-2006 and that too disr egarding the pendency of a criminal case against. While clarifying that no prom otional exercise had been undertaken in the year 2004, the learned counsel point ed out that though permissible, the petitioner did not submit any representation under the relevant Policy against any of the processes. Mr. Datta in his reply has drawn the attention of this Court to the fact that the petitioner had submitted a representation on 20.07.2005 highli ghting her grievance against denial of promotion. 11. The competing pleadings and the arguments based thereon have rec eived due consideration. Admittedly, the petitioner had been promoted to the po st of Asstt. Manager (Scale - III) in the year 1991 and as per the Policy in for ce then on the completion of the qualifying years of service of three years as p rescribed thereunder, she was eligible for promotion to the next higher grade/ca dre/scale in 1994. Though, meanwhile, the post of Asstt. Manager has been nomen clatured as Deputy Manager, for the sake of convenience and reference to the rel evant records available to evaluate the rival pleas, the earlier designation wou ld be maintained. According to the respondents, there was no promotional exerci se between 1994 and 1997 and that the petitioner came within the zone of conside ration therefor only in the year 1998. The Policy stood modified by the New Pro motional Policy for Officers, 2006 w.e.f. 02.02.2007. The respondents have main tained that since 1998 till 2006 the case of the petitioner was duly considered in terms of the Policy. But on a comparative assessment of suitability qua the other contending candidates and the vacancies available she could not be promote d having regard to the criteria therefor as prescribed thereby (Policy). This w as however with exception to the year 2004 when no such promotional exercise was under taken. 12. The respondents have insisted that under the New Promotional Pol icy for Officers, 2006 (also for short referred to as the New Policy) for promot ion up to the cadre of Scale - V, all officers within the zone of consideration were required to qualify in a written test for being included in the further pro cess for consideration for promotion for the year concerned. This is borne out by Clause 9.2.1 of the New Policy. According to them, the petitioner is also go verned thereby, but though she was served with the call letters for such written examinations for the year 2007 & 2008, she did not take part in the test delibe rately. To the contrary, the petitioner’s assertion is that her case for promot ion from Scale - III to Scale - IV had not been considered for promotion as per the Policy since the year she had become eligible and that firstly, the New Poli cy is not applicable to her and secondly even if it is so, the call letters for the written test of 2007 on wards had not been served on her. 13. Considering the nature of the controversy and the state of contr asting pleadings, it is appropriate to initiate the present adjudicating exercis e by referring to the Old Policy at the threshold. In terms of Clause 6 thereof , the officers concerned to be eligible for being considered for promotion up to the ranks as mentioned therein (relevant for the present case as the petitioner is vying for the post of Deputy Manager) should complete in the existing cadre, minimum 3 full years of service from the date of his/her selection thereto. Th e panel of such officers is to be prepared on the basis of seniority, the zone b eing extendable to 3 times the number of vacancies. The criteria for promotion and weightage as ordained by Clause 7 are - a. Seniority. b. Insurance Qualifications. c. Performance appraisals obtainable from the Confidential Roll Form. i) Traits in CR. ii) Performance. iii)Growth potential. d. Interview. 14. For promotion from the post of Assistant Manager to Deputy Manag er, the distribution of marks indicating the maximum weightage is as hereunder: a) Seniority - - - - - - - - - - - - - 30. b) Insurance Qualifications c) C.R. Form i) Traits in CR - - - - - - - - - 20. ii) Performance - - - - - - - - - 25. iii)Growth potential - - - - - - - 25. ››››››››››› _________ 100 15. The promotion Committee for advancement from the post of Asstt. Manager to Deputy Manager as prescribed by Clause 9 namely, Lower Management Services Co mmittee is constituted of Chairman-cum-Managing Director of the company, two Gen eral Managers (one of whom should be General Manager, In-charge of Personnel) an d SC/ST representatives to be nominated by the Chairman-cum-Managing Director of the Company. Clause - 10 outlines the process of selection for Promotion. Ther eunder, it would study the information contained in the summary sheets and award suitable weightage, either plus or minus for the inconsistencies and/or exagger ated marks as may be observed from the confidential report/work records of the O fficers concerned. The Policy stipulates that while giving such weightage, the Committee would also take into account regional imbalances noticed, if any, and the total marks would be suitably moderated and recorded by it taking into accou nt the marks secured in interviews wherever applicable. The Committee on the ba sis of the evaluation so made is eventually required to select officers for prom otion and forward the list thereof to the appointing authority. The list, as the Clause provides, has to be prepared so as to maintain inter-se seniority of the concerned officers of the existing cadres. In phases thereafter of 90% and 10% of the vacancies, promotions would be made subject to the review if warrante d on the basis of representation(s) of any aggrieved candidate/officer. 16. It would thus be obvious from the above Clauses of the Policy that the criteria for promotion have been well identified and the distribution of marks o n the relevant counts has also been clearly set out thereunder. While it is app arent that the candidate would earn marks for seniority depending on the number of years of qualifying service in the feeder cadre, his/her score on the other s egments of appreciation of his/her suitability for promotion would exclusively b e contingent on the evaluation of his/her Traits in CR, Performance and Growth P otential traceable to his/her Confidential Roll Form (hereinafter for short refe rred to as the CR/ACR). 17. The guidelines and administrative instructions relating to promotion Pol icy for officers amongst others design the marking system for the various aspect s of assessment of the officers as indicated hereinabove. Vis-à-vis the promotio nal process from Asstt. Manager to Deputy Manager this being of considerable rel evance is set out hereinbelow for ready reference. (A) SENIORITY Name of the posts Marks for each completed year of service in the existing cadre. Maximum Marks C.R. Form Assistant Manager 5 30 (i) Traits As provided in appendix -1 t o the guidelines with a detailed procedure of working Committee. The entitlemen ts dependent on various factors as set out therein. (ii) Performance Rating A Rating B Rating C Rating D Rating E 25 20 15 Minus 3 Minus 8 (iii) Growth potential Item V (1) 6 Item V (2) 6 Item V (3) (Fit) Or Item V(3) (Not yet Fit) [ For reasons other than being short of eligibility period] OR Item V(3) (Not Fit) [For reasons other than being short of eligibility period] 13 0 Minus 13 18. The grouping of traits vis-à-vis the various components thereof as prescribed by the Policy being of significance as well is extracted hereinbel ow: GROUPING OF TRAITS (SECTION 1 OF C.R) PROFESSIONAL TRAITS MANAGERIAL SKILLS JOB SKILLS BEHAVIORAL SKILL 1. Intelligence. 2. Financial Integrity. 3. Amenability to discipline. 4. Self confidential. 5. Physical health 6. Interest in self development and ambition. 1. Leadership ability. 2. Initiative and drive. 3. Planning and organisational a bility. 4. Capacity to delegation. 5. Enforcement of discipline. 6. Development and Training of staff. 1. Job knowledge. 2. Application of Job. 3. Dependabilit y. 4. Innovative ability. 5. Cost consciousness. 6. Power to express (a) written (b) oral 1. Emotional Stability. 2. Sincerity and devotion to duty. 3. Se nse of Justice & Impartibility. 4. Interpersonal Relationship (a) With superior. (b) With colleague. (c) With subor dinate. 5. Behaviour towards Policy Holders etc. 6. Persuasiveness and tact. 19. In rating the traits in the respective groups, marks for the gra dings earned have been alloted as hereunder: Outstanding -------------- 5 Above average ----------- 4 Average ------------------- 3 Below average ------------ Minus 1 Poor ------------------------ Minus 3 20. To scrutinise informations furnished to it and assign suitable w eightage to the candidates and even add or subtract marks on deduction in case o f inconsistencies and/or exaggerated appraisals of the candidates, it is also au thorised to take in to account regional imbalances while conducting this exercis e. To reiterate, the bulk of the marks portraying the evaluation of the candida tes are awardable on the entries in the relevant CR/ACR and the assessments made by the concerned authorities qua various aspects of performance contemplated by the Policy. 21. From the summary of the petitioners performance under various he ads as above furnished by the respondents in a tabular form (annexure - 3 to the ir affidavit dated 26.08.2011) her marks during the relevant period are as herei nbelow: Year Marks 1998 75.07 1999 68.72 2000 64.54 2001 61.48 2002 72.29 2003 77.06 2005 93.82 2006 91.64 22. As against this, the cut off marks for the advance promotion lis t for the first batch of candidates comprising of 90% of the vacancies for the c orresponding years are- YearMarks 1998 94.59 1999 90.99 2000 85.47 2001 84.82 2002 85.65 2003 93.13 2005 94.39 2006 98.33 23. The respondents have consistently pleaded that the case of the p etitioner for promotion from Scale-III to Scale-IV had been duly considered in t erms of the Policy prevalent at all relevant times from 1998-2006 (except 2004 w hen no such exercise had been made). The records of the selections as submitted for the perusal of this Court, prima facie demonstrate that she was one of the c andidates whose case had been dealt with by the Committee during this period. A s the petitioner has alleged non-consideration of her case in terms of the lette r and spirit of the Policy resulting in denial of her promotion having regard to the above prescriptions of criteria therefor, it would be indispensable to scru tinise the proceedings of the Committee to assay the tenability of this remonstr ance. 24. The records laid before this Court contain the tabulation sheets of marks secured by the candidates in the selection process during 1998 to 2006 , the minutes of the proceedings of the Lower Management Services Committee, the Confidential Report/Rolls of the petitioner for the period 1995-1996 to 2004-2 005 as well as her rating work-sheet for all the exercises. 25. The records reveal that in terms of the Policy, the Confidential Reports of the petitioner for three years immediately prior to that of the year of consideration were taken in to account. For instance, in the promotional ex ercise of 1998 her Confidential Roll for 1994-1995, 1995-1996 and 1996-1997 were acted upon. The same pattern was followed for the subsequent years as well. H er Confidential Rolls disclose that the evaluation of an officer for the segment s of trait and performance has to be at three levels i.e. that of the Reporting Officer, followed by First Review and Second Review. The gradings awardable to an officer on