IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 16893 of 2005(J) -------------------------------------- PETITIONER(S): --------------------- N. KRISHNAN, MANAGER SCALE II, SYNDICATE BANK, PANDALAM. BY ADVS. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR SRI.K.SANDESH RAJA RESPONDENT(S): ------------------------- 1. SYNDICATE BANK, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, HEAD OFFICE, MANIPAL. 2. GENERAL MANAGER (PERSONNEL), SYNDICATE BANK, HEAD OFFICE, MANIPAL. 3. DY.GENERAL MANAGER (PERSONNEL), SYNDICATE BANK, HEAD OFFICE, MANIPAL. 4. MURALEEDHARAN K.P., CHIEF MANAGER, SYNDICATE BANK, GOREGEON EAST BRANCH, MUMBAI-400 063. 5. K. MATHANASEKHARAM, CHIEF MANAGER, SYNDICATE BANK, TAGORE ROAD, GANDHI NAGAR, FORT BLAIR-744 101. R1 TO R3 BY ADV. SRI.M.P.ASHOK KUMAR R4 BY SMT.T.D.RAJALAKSHMI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/11/2010, THE COURT ON 09/11/2010 DELIVERED THE FOLLOWING: sts WP(C) NO. 16893/2005-J APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER DT. 7/8/1993. P2 COPY OF THE CIRCULAR NO.282/85/BC/16/HRDD/MPRDS, DT. 17/9/1985. P3 COPY OF THE CIRCULAR NO.14/88/BC/PD/3/PAS. DT. 7/1/1988. P4 COPY OF THE CIRCULAR NO.105/90/BC/HRDD/10/MPRDS DT. P5 COPY OF THE SENIORITY LIST IN CIRCULAR NO.268/88/BC/PER/55/PAS.DT.21/9/88. P6 COPY OF THE CIRCULAR NO.201/90/BC/HRDD/18/MPRDS, DT. 14/8/1990. P7 COPY OF THE CIRCULAR NO.20/93/BC/PD/6/PAS, DT.4/2/1993. P8 COPY OF THE CIRCULAR NO.88/93/BC/PD/24 HRDD/DT.28/4/1993. P9 COPY OF THE APPEAL DT. 17/9/1990. P10 COPY OF THE REPLY DT. 7/1/1991. P11 COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENT BANK,D.7/8/1995. P12 COPY OF THE JUDGMENT IN O.P.1500/91, DT. 6/11/2003. P13 COPY OF THE REPRESENTATION DT. 16/1/2004. P14 COPY OF THE CIRCULAR NO.302/87/BC/HRDD/24/MPRDS,DT. 8/9/1987. P15 COPY OF THE REPLY DT. 24/12/2004. P16 COPY OF THE CIRCULAR NO.87/93/BC/PD/23/HRDD DT. 28/4/1993. P17 COPY OF THE CIRCULAR NO.118/98/BC/PD/33/HRDD DT.22/6/1998. P18 COPY OF THE ORDER DT. 27/12/2004. P19 COPY OF THE LETTER DT.23/8/1990. P20 COPY OF THE CIRCULAR NO.58/81/BC/PD/17, DT. 20/3/1981. P21 COPY OF THE LETTER DT. 8/9/1990. P22 COPY OF THE LETTER DT. 6/4/1990. P23 COPY OF THE CIRCULAR NO.114-2000-BC, DT. 17/6/2000. P24 COPY OF THE CIRCULAR NO.173/2004/BC/PAD, DT. 10/9/2004. P25 COPY F THE PRESS REPORT, DT. 19/4/1993. WP(C) NO. 16893/2005 P26 COPY OF THE LETTER DT. 7/11/1988. P27 COPY OF THE RELEVANT EXTRACTSOF THE BRANCH INFRMATION BOOKS PUBLISHED IN THE YEAR 2002. P28 COPY OF THE RELEVANT EXTRACTS OF THE BRANCH INFORMATION BOOKS PUBLISHED IN THE YEAR 1989. RESPONDENT'S EXHIBITS: R2(A) COPY OF THE CIRCULAR DATED 11/12/1990. R2(B) COPY OF THE REPLY DATED 01/01/1991. /TRUE COPY/ P.A.TO . JUDGE sts S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.16893 OF 2005 --------------------------------------- Dated this the 9th day of November, 2010 JUDGMENT The petitioner was originally recruited as an Officer Trainee in the 1st respondent Bank on 12.12.1977. He was confirmed in the post of Junior Management Grade Scale-I (JMGS-I) on 18.12.1978. The next post to which the petitioner can aspire for promotion is that of Middle Management Grade Scale-II (MMGS- II). The Bank, by circular dated 19.3.1990 initiated steps for filling up 120 vacancies of MMGS-II by promotion from among qualified JMGS-I officers. The promotion policy as obtaining in 1990 was Ext.P2, which was revised by Ext.P4 circular dated 16.04.1990. In the promotion policy, both as per Exts.P2 and P4, the minimum eligibility condition for promotion to the post of MMGS-II is contained in paragraph 4. As per Note 1 of paragraph 4 of Exts.P2 & P4, Officers in JMGS-I, who have worked for 2 years in a branch/office located in a rural area, shall only be considered for promotion provided he has completed 7 years in JMGS-I, as on 31st December of the previous year. The W.P.(C)No.16893/05 2 same was made applicable to promotions with effect from 01.06.1988. Further as per Clause 11.10 of Exts.P2 and P4 the maximum number of officers to be considered for promotion shall be restricted to 4 times the number of vacancies. The petitioner had already put in 3 ½ years of rural service as early as in 1982. The petitioner also have the minimum service for consideration for promotion to the post of MMGS-II. Ext.P5 is the seniority list of JMGS-I officers at the relevant time. The petitioner was included as rank No. 275 in Ext.P5 seniority list. Respondents 4 and 5 were juniors to the petitioner and their ranks in Ext.P5 seniority list were 1163 and 1210. After completing the procedure for promotions 117 JMGS-I officers were promoted as MMGS-II. According to the petitioner, persons like the fourth respondent, who did not possess the prescribed eligibility service of two years in rural branches were also promoted by Ext.P6. The fourth and fifth respondents who could not have been validly included in the zone of consideration was also promoted. At the same time the petitioner, who was fully qualified and eligible and much senior to the said persons W.P.(C)No.16893/05 3 was not promoted. (He was promoted only on 01.09.1993 by Ext.P1 order.) Aggrieved by the denial of promotion, the petitioner filed Ext.P9 appeal to the second respondent. But no orders were passed in the said appeal. Petitioner filed O.P. No.1500/1991 challenging the promotion process. In the said original petition, the Chairman & Managing Director of the Bank filed a counter affidavit stating that the Bank had waived the condition regarding rural service in the 1990 promotion process, but no details were furnished therein. By Ext.P12 judgment dated 06.11.2003, this court set aside Ext.P10 order by which the petitioner's representation was rejected and directed the second respondent appellate authority to reconsider the petitioner's appeal with notice to the petitioner and to pass an order adverting to the contentions of the petitioner. But without notice to the petitioner and without hearing him, the third respondent passed Ext.P15 order dated 24.12.2004 holding that the requirement of rural service as a condition for promotion was not enforced due to administrative constraints. Petitioner is challenging Ext.P15 order in this writ petition. W.P.(C)No.16893/05 4 2. According to the petitioner, the entire process of selection for promotion is vitiated for having been done against the specific eligibility and other conditions for such promotion in the promotion policy framed by the Bank themselves, insofar as the persons who did not possess the minimum requirement for promotion have been considered for promotion and persons who could not have been validly included in the zone of consideration have been promoted. The petitioner strongly disputes that there was a waiver of the eligibility condition of minimum two years' rural service. According to the petitioner, the reason for alleged waiver of the condition regarding the rural service is also unsustainable in view of Ext.P3 issued by the Bank, wherein persons who did not possess the minimum two year rural service were offered an opportunity to acquire the said minimum requirement and therefore all officers had sufficient opportunity to obtain the minimum rural service by 31st December 1989 as is clear from Ext.P3, opportunity to seek posting in rural branches were offered as early as on 5.10.1987. The petitioner further contends that, insofar as admittedly the promotion W.P.(C)No.16893/05 5 process was initiated for filling up 120 vacancies and only 480 candidates could have been validly included within the zone of consideration the fact that, more than 1200 persons have been considered for such promotion would go to show that the specific conditions in the promotion policy have not been adhered to while affecting the promotion. The petitioner therefore seeks the following reliefs: i. to issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P15 and to quash the same. ii. to issue a writ of certiorari other appropriate writ, direction or order calling for the records leading to Ext.P6 and P7 and to quash the same to the extent of granting promotions to the ineligible officers like the 4th respondent from JMGS-I to MMGS-II in the year 1990 and included in Ext.P6 as well the promotion of all the officers like the 5th respondent who fell outside the zone of consideration for the above promotion as per Ext.P4 promotion policy. iii. to issue writ of Mandamus or writ direction, or order directing the respondents 1 & 2 to promote the petitioner to the scale of MMGS-II w.e.f. 1.10.1990 and to grant all consequential service benefits including arrears of pay and allowance. iv. to issue a writ of Mandamus or writ direction or order directing the respondents 1 & 2 to promote the petitioner to MMGS-III and SMGS-IV retrospectively w.e.f. 1.11.1999 and 25.10.2003 respectively and to grant all consequential service benefits including arrears of pay and allowances. W.P.(C)No.16893/05 6 3. By order dated 3.4.2006 in I.A.No.4155/2006 this Court directed the petitioner to take out notice to the affected parties by publishing the notice in a newspaper, under Rule 148 of the Rules of the High Court of Kerala. 4. A counter affidavit dated 15.9.2007 and an additional counter affidavit dated 11.10.2010 have been filed by the second respondent. They would take a contention that for the 1990 promotion the stipulation regarding minimum two years service in the rural area has been waived. According to the second respondent, the said decision was taken since the officers to be posted to rural branches to become eligible for promotion were more than rural vacancies available. Therefore, none of the officers were disqualified for want of rural service from participating in the promotion process. According to them, the promotion was based on seniority-cum- merit and considering the rank of the petitioner, the petitioner was not within the sphere of candidates, who could be selected for promotion in accordance with the marks awarded to them in the promotion process as per the norms applicable. But nothing is stated W.P.(C)No.16893/05 7 regarding the waiver of the other condition regarding zone of consideration except simply denying the same. The fourth respondent has filed a counter affidavit, wherein he has taken a contention that he had worked in Mambaram branch in Kerala State and Mulegumoodu branch in Tamil Nadu which are rural branches. He has also produced some certificates in support of his contention. The petitioner has filed a reply affidavit reiterating that there was no waiver of any of the conditions in the promotion policy regarding eligibility for promotion at any time as contended by the Bank. The petitioner would also contend that as is evident from the classification of branches by the bank themselves, the Mambaram branch and the Mulegumoodu branch were classified as semi-urban banks, in support of which contention the petitioner has produced Exts.P27 and P28, which are extracts from the book published by the bank classifying various branches of the bank as urban, semi-urban and rural, wherein the Mambaram branch and the Mulegumoodu branch were classified as semi-urban banks. 5. I have considered the rival contentions in detail. W.P.(C)No.16893/05 8 Note.1 to Clause 4 of Ext.P2 reads thus: “Note:1 Officers in JMGS I, who have worked for 2 years in a branch/office located in a rural area, shall only be considered for promotion provided he has completed 7 years in JMGS I as on 31st December of previous year. This is applicable in respect of promotions to be made with effect from 1-6-1988.” Clause 11.10 of Ext.P2 reads thus: “11.10 In any case, the maximum number of officers to be considered for promotion shall be restricted to 4 times the number of vacancies.” Ext.P2 is dated 17.9.1985. Clauses 4 and 11.10 in Ext.P2 are verbatim repeated in Ext.P4, which is dated 16.4.1990. It is not disputed before me that as per the promotion policy published by the bank, the two conditions were part of the promotion policy. Their contention is that the Board of Directors had taken a decision to waive that condition regarding rural service. But no document whatsoever is produced before this Court to show that such a conscious decision to waive the condition has been taken by any authority whatsoever, although in the counter affidavit, it has been asserted so. In this regard, it is pertinent to note that in Ext.P11 counter affidavit filed by the respondent W.P.(C)No.16893/05 9 bank in O.P.No.1500/1991, it has been specifically stated thus in paragraph 3: “Apart from this, minimum two years rural branch service as on the previous 31st December, was also specified as on eligibility criteria for consideration for promotion. But in the 1990 promotion process, the Bank waived the rural service consideration for the reason that considering the number of eligible officers there were no sufficient rural vacancies for posting to enable them to become eligible for consideration. Hence as the position now stands, none of the officers was disqualified for the reason of want of rural service. Moreover, no weightage in marks was given for rural service in the promotion process. So the petitioner's 3 ½ years rural service cannot be a deciding factor or relevant condition for promotion.” Considering that contention, in Ext.P12 judgment in that original petition, this Court had held thus in paragraph 3: “3. Sri. Ramakumar, learned counsel appearing for the petitioner submits that there is no proper consideration of the appeal. Inviting reference to the counter affidavit, learned counsel further submits that apart from the bald statement that the stipulation regarding rural service was waived, no particulars as such is furnished. When was it waived? Why was it waived? There is no answer in the counter affidavit. But at the same time that it was waived is not in dispute. Ext.P1 is the Promotion Policy issued on 16-4-1990. It is based on that Policy the selection was made. The selection was made within a few months since the select list as such was published in August 1990. In any case a deviation from the Policy already declared is admittedly not notified.” (underlining supplied) W.P.(C)No.16893/05 10 it is taking into account these facts that by Ext.P12 judgment, the appeal was directed to be re-considered. But in Ext.P15 order, which was passed pursuant to the judgment, also nothing is stated as to who, when and why the condition has been waived. Even today, in spite of giving several chances to the bank, the bank is not in a position to produce any document which would prove that such a conscious decision was taken by any authority to waive the eligibility condition. The contention of the respondents in respect of the same is that the number of officers, who aspire for promotion were more than the number of rural branches available. But this contention is not supported by Ext.P3 issued by the bank as early as on 7.1.1988. The said Circular reads thus: “We invite the attention of our officers to the following circulars on the above subject: i) Cir. No.282/85/BC dated 17/9/1985 ii) Cir. No.332/87/BC 5/10/1987 iii) Cir. No.381/87/BC dated 12/11/1987 We had conveyed the Government guidelines on the requirement of completion of rural and semi- urban service for the purpose of promotion vide our Cir. No.282/85/BC. In terms of clause 4 of the said circular, an officer in JMGS I is required to work in a rural area for a period of atleast two years and an officer in MMGS II is required to work in rural/semi urban area for a period of atleast 3 years for being W.P.(C)No.16893/05 11 considered eligible for promotion to the next higher grade. This is, however, in addition to other eligibility criteria laid down in the promotion policy. Inspite of the guidelines having been circulated as early as in 1985, many of the officers have not yet fulfilled the condition of completing the rural and/semi urban service. With a view to providing an opportunity to such officers who are likely to be in the zone of consideration for promotion to MMGS II and MMGS III to satisfy the requirement, Circular No. 332/87/BC dated 5/10/1987 was issued advising certain category of officers to indicate 3 zones in the order of preference. Since the number of rural and semi urban branches in certain zones is very limited, officers were advised to indicate 3 zones so as to accommodate them in one of the zones based on the availability of vacancies. However, the response to the said circular has not been very encouraging. Besides, some of the officers have indicated a few places of their choice instead of 3 zones as required in the circular. Officers are hereby advised that the options exercised which are not in conformity with our circular will not be considered for the purpose of posting. The circular is being issued with a view to providing one more opportunity to our officers to indicate their preference in terms of our circular No.332/87 so that they would not deny themselves of being considered for promotion. We are therefore, advising such officers who got into JMGS I on or before 1/1/1981 and into MMGS II on or before 1/7/1983 to indicate three zones in the order of preference in the format prescribed in the circular 332/87/BC. Such of the officers who have already exercised their options but not in accordance with the circular are also required to forward a fresh application. Requests for a particular place will not be considered. However, officers exempted under circular No. 381/87/BC dated 12/11/1987 need not respond to this circular. All such requests should be directly sent to the Personnel Manager, Personnel Administration W.P.(C)No.16893/05 12 Section, Personnel Department, H.O. Manipal so as to reach him on or before 31/1/1988, marking a copy to the concerned Zonal Office. Requests received after 31/1/1988 will not be entertained. It is once again reiterated that if the request is not received by us on or before 31/1/1988, it will be deemed that the officer is not interested in completing the rural and/or semi urban term and it will be noted accordingly for the purpose of promotion. Branches/Offices are advised to display a copy of this circular in the Notice Board for the information of officers” (underlining supplied) The said circular does not at all indicate that the Bank was not able to provide opportunity for all those who seek posting at rural branches. On the other hand, that circular shows that many of the officers did not respond to the circular inviting preference for being posted in rural branches. It further shows that despite repeated chances having been given officers did not avail of those opportunity to work in rural branches to acquire the eligibility condition for promotion despite having been made aware of the necessity. After having issued Ext.P3, I fail to understand how the bank can take a contention that it was because of want of sufficient vacancies in rural branches that officers could not be deputed to rural branches so as to enable W.P.(C)No.16893/05 13 them to acquire eligibility for consideration for promotion. As such, the bank has not been able to satisfy me with any material whatsoever to show that there was actually a decision to waive the eligibility condition of two years service in a rural branch. Admittedly, the promotion process was without taking into account the said eligibility condition. That being so, the promotion process initiated by circular dated 19.3.1990 is clearly against the promotion policy declared by the bank themselves. 6. As per Clause 11.10 of both Exts.P2 and P4, the maximum number of officers to be considered for promotion was restricted to four times the number of vacancies. Admittedly, the number of vacancies available was only 120. Therefore, the maximum number of candidates who could have been considered for promotion in that particular selection was only 480. The fourth respondent was serial number 1163 and the fifth respondent was serial number 1210 in Ext.P5 seniority list of JMGS-I Officers. Both of them were outside the zone of consideration as per Clause 11.10 of the promotion policy. That shows that almost ten times the number of vacancies of officers W.P.(C)No.16893/05 14 were considered for promotion in 1990 promotion process, which is also directly against the promotion policy. The Bank's advocate would contend that it is for having better field of choice that the zone of consideration was expanded. I am of opinion that after declaring a promotion policy the Bank could not have expanded the zone of consideration on the ground of better field of choice without amending the promotion policy or without an enabling provision to do so, which have not been brought to my notice. 7. The fourth respondent would contend that he had rural service in the Mambaram branch and the Mulegumoodu branch. But the petitioner has produced Exts.P27 and P28, which are extracts from the book relating classification of branches published by the bank themselves, wherein the two branches are classified as semi-urban branches. The petitioner has also produced before me, for perusal, the original of the said book, which corresponds to Exts.P27 and 28. As such, the contention of the fourth respondent that he had two years' rural service does not appear to be convincing. Even apart from the W.P.(C)No.16893/05 15 same, he is included as serial number 1163 in Ext.P5 seniority list. Therefore, he was clearly outside the zone of consideration as per Clause 11.10 of the promotion policy. Although the fifth respondent also has filed a counter affidavit, he also could not effectively controvert the contentions of the petitioner regarding violation of Clause 11.10 in Exts.P2 and P4. After having laid down a promotion policy laying down specific terms and conditions for the promotion process, the bank cannot deviate from the same without sufficient reasons and without an enabling provision to do so. On both grounds regarding the eligibility condition for promotion as well as the condition regarding the number of persons to be included in the zone of consideration, the bank has sadly failed to convince this court that they have effected the promotion complying with the terms and conditions prescribed in Exts.P2 and P4 promotion policies. The writ petition is liable to be allowed on that ground alone. Therefore, I am not going into the other contentions of the petitioner raised in this writ petition, which are left open to be agitated, if necessity arises in future proceedings. W.P.(C)No.16893/05 16 8. In view of my above findings, Ext.P15 and the entire promotion process initiated by circular dated 19.3.1990 for promotion from the post of JMGS -I to MMGS -II which have culminated in Ext.P6 are clearly unsustainable and are therefore, quashed. Respondents 1 to 3 are directed to re-do the entire promotion process pursuant to the circular dated 19.3.1990, in accordance with the promotion policy as obtaining at that time namely, the eligibility condition of minimum two years' service in a rural area and the number of persons to be considered for promotion restricted to four times the number of vacancies to be filled up, namely, 120 x 4 = 480. Only the persons, who were eligible as on the date of issue of the circular dated 19.3.1990 alone shall be considered for this purpose. The said process shall be completed within a period of two months from the date of receipt of a copy of this judgment. 9. This Court is very well aware of the consequences of setting aside promotions of 117 persons after 20 years. The petitioner has been promoted in 1993. But he is stagnating in MMGS II ever since. At the same time, persons far junior to W.P.(C)No.16893/05 17 him, who were promoted earlier such as respondents 4 and 5 have been further promoted to higher posts. All of them will have to come back to original post of JMGS -I in view of the above direction. Being the conscious of the above contingency, I had, during arguments, put it to the learned counsel for the bank to save the situation by granting the petitioner promotion with effect from 1990 by themselves. I had granted almost a month's time for this purpose and after consulting the superior officers of the bank, the learned counsel for the bank expressed inability to agree to the said suggestion put by the Court. It is under the above circumstances, this Court was forced to declare the entire promotion process as null and void. 10. The petitioner has been fighting for twenty years for a right cause, which has been steadfastly resisted by