IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4512 of 2011 Arjun, s/o- Sri Nilambar Lal Das, r/o- Quarter No. D/30, near post office, Rajendra Agricultural University Campus, PUSA, P.S.- PUSA, Samastipur, Bihar. …….. Petitioner Versus 1. The State Bank Of India through its General Manager (Network I) having office at West Gandhi Maidan, Patna- 800001. 2. The General Manager (Network I) having office at S.B.I. Local Head Office West Gandhi Maidan, Patna-800001. 3. The Regional Manager, State Bank of India, having office at Regional Business Office, Station Road, Laheriasarai, Darbhanga, Bihar. 4. The Chief Manager (Rural) State Bank of India having office at Regional Business Office, Station Road, Laheriasarai, Darbhanga, Bihar. …………. Respondents For the petitioner : Mr. Anand K. Ojha, Advocate For the Bank : Mr. Kaushlendra Kumar Sinha, Advocate. ---------------------------------- 5 17.08.2011 Present application under Article 226 of the Constitution of India has been filed seeking an appropriate writ(s)/order(s) quashing the order dated 13.1.2011 passed by the respondent General Manager, Network-I of the State Bank of India (for short “the Bank”) which was communicated to the petitioner by Memo dated 21.1.2011 (Annexure-1 series). Short facts of the case are that respondent Bank issued offer of appointment to the petitioner on the post of Marketing and Recovery Officer (Rural) in the Junior Management Grade Scale-I. The aforesaid appointment/engagement was contractual in nature. Similarly, several other persons were also appointed/retained on contract basis. The offer of appointment dated 23rd April, 2008 is part of Annexure-2 series. There is no dispute that initially the engagement/retention was made for 02 years from 12.5.2008 to 11.5.2010. The petitioner approached 2 this Court by filing a writ petition bearing C.W.J.C. No. 18818 of 2010 with a grievance that similarly placed officers retained on contract basis have been granted permanence whereas the same relief has not been granted to him. The petitioner also contended that a representation in this regard (Annexure-5 series) has been preferred but no action thereon has been taken. This Court by a proceeding dated 18.11.2010 (Annexure- 1 series) disposed of the said application by the following order: “4. Having heard counsel for the parties, I direct the competent authority of the S.B.I. to consider and dispose of the request of the petitioner contained in his representation dated 4th August, 2010 forwarded to the General Manager by the Regional Manager under letter dated 14/19-08- 2010, as early as possible, in any case within a period of three months from the date of receipt of a copy of this order. It goes without saying that in case petitioner is allowed regularization, he shall get continuity in service. “ The respondents, in the light of said observation/direction, considered the representation of the petitioner dated 4.8.2010 and passed the reasoned order disposing of the said representation which has been impugned in the present writ petition. Learned counsel for the petitioner submits that petitioner was all through present at the Branch but was not allowed to discharge his duties w.e.f. November, 2009. The materials on record (impugned order) do indicate that he was paid salary till February 2010. The finding that the petitioner wilfully absented from job/service, is thus self contradictory. As about his claim for grant of permanence/absorption, it is contended that his 3 performance/achievement in respect of loan and recovery target was/were low since he was not allowed to perform the job after November, 2009 although he remained present at the Branch throughout. It is next contended that the Bank permitted the petitioner to continue beyond the initial period of retention and he was paid salary up to February, 2010 and as such it is not correct to say that he had absented from duty from November, 2009. A counter affidavit has been filed on behalf of the respondents. Learned counsel for the respondents, on the other hand, submits that the engagement/appointment of the petitioner was for 02 years only on contract basis (12.5.2009 to 11.5.2010) which is governed by the Rule called the State Bank of India Officers/Marketing and Recovery (Rural) Service and Conduct Rules (for short “ the Rules”). Clause 20.2 of the said Rules provide termination of the contract appointment by giving one month’s notice or one month’s gross salary in lieu thereof to the officers during the first year of the contract service and thereafter by giving three months’ notice or salary/gross emoluments in lieu thereof. The appropriate authority of the respondent Bank can invoke the aforesaid clause if it is found that his continuance is not in the interest of the Bank. The relevant rule is enclosed as Annexure-C to the counter affidavit. Learned counsel for the Bank laid emphasis on the nature of engagement/appointment offered to the petitioner. It is the stand of the respondent that from November, 2009, the petitioner was found absent from his 4 duty unauthorisedly without there being any application therefor. The respondents served a notice dated 8.3.2010 under registered cover whereby he was instructed to report for duty and submit satisfactory explanation for his absence failing which it would be deemed that he had voluntarily resigned from service without giving requisite notice. The said notice (Annexure-E) was not responded and as such the Bank again issued notice dated 22.6.2010 through mail under registered cover upon the address available with the Bank. The said notice is Annexure-F to the counter affidavit. Petitioner, in the backdrop of aforesaid facts, made a representation in August, 2010 followed by a writ petition in this Court vide C.W.J.C. No. 18818 of 2010. This Court, without giving any opportunity to the Bank to file their reply affidavit, disposed of the application to consider and dispose of the request/representation of the petitioner within a stipulated period of time. The matter was thereafter considered by the respondents and on going through the records and the recommendations, it was found that his continuance was not in the interest of Bank. The respondents, thus, invoked clause 20.2. of the Rules and decided to terminate the contract of engagement by giving him notice as required under the Rules. It is the stand of the respondent that considering the nature of engagement of the petitioner and the materials on record, the action of the respondent in giving notice for disengagement in terms of the stipulations of his engagement on contract and the relevant Rules/provision, no fault can be found in the order 5 whereby the respondents invoked Clause 20.2 of the Rules giving him notice for disengagement. The petitioner has also raised a grievance that some of the similarly situated persons detailed in paragraph (iii) of paragraph 1 were considered for absorption in permanent cadre against the post of Rural Marketing and Recovery Officer (Specialised Cadre) in the Junior Management Grade Scale-I but the petitioner was discriminated. The respondents, in their counter affidavit, have stated that Contract Officers Welfare Association had filed a writ petition bearing W.P. No. 7431 of 2010 in the Madras High Court questioning the justification of advertisement issued by the respondent Bank to recruit Probationary Officers (Rural Business) from open market. In the aforesaid case, the respondent Bank filed affidavits. A stand was taken that they shall grant one time permanent absorption to contract employees in the service of the Bank on 14th July, 2010 who had achieved 60 % target during the year 2009-10 and the same would also not be applicable to officers who have suffered punishment in departmental proceeding. In the light of the said stand taken by the Bank, the said writ petition was disposed of by an order dated 25th October, 2010 (Annexure-M to the counter affidavit). It further appears therefrom that the claim of the petitioner that he was present at the Branch assigned to him, has been strongly disputed by the Bank on diverse counts. It has been contended on behalf of the respondent that the overall 6 achievement of the petitioner was also rated poor being 36.02 % which is much below the target of 60 %. In paragraph 31 of the counter affidavit, the respondents have enlisted the achievements of the persons cited by the petitioner in the writ petition. It is, thus, the stand of the respondent that in the matter of grant of absorption, the petitioner has not been discriminated in any manner. The question of discrimination arises only when equals in all respects have been treated unequally. As about the claim of the petitioner of having received salary up to February, 2010 is concerned, it is explained that such employees are self drawing officers. Certain amount is credited in the account of such employees for payment of due remunerations. It is the stand of the respondent that no document has been brought on record that salary/remuneration of the petitioner was released by the Bank till February, 2010. On a consideration of the rival submissions, it appears that there is a serious dispute between the parties. The stand of the petitioner is that he remained present at the Branch assigned to him but no work/target was assigned to him and he was not allowed to discharge duties after November, 2009 whereas the stand of the respondent Bank is that the petitioner absented wilfully from attending the office/Bank from November, 2009 and had, thus, rendered himself liable to be terminated in terms of Rule/provisions. It is the stand of the respondent Bank that at least on two occasions in the past, notices were issued to the petitioners on this count whereas the stand of the petitioner is 7 that no such notice was received by him. These are, therefore, issues of fact. This Court would not delve into them. There is no dispute that petitioner was engaged on contractual basis. The terms of the engagement as well as the Rule/provisions provide/contemplate termination of contract by issuing notice. For the first year, period of such notice is one month whereas for the subsequent years, three months notice is required for disengagement of employees like the petitioner. By the order impugned, the respondents have invoked the aforesaid provision and he has been placed on notice. No fault, therefore, can be found in the said action of the respondents which is covered by the Rule/provision. As about the claim of the petitioner of being discriminated in the matter of absorption, it is seen that petitioner had not achieved the required target assigned to him. The respondent Bank, as per the affidavit filed in the writ proceeding, was bound to consider those who had performed well (having achieved 60 % of the target). Admittedly, for one reason or the other, the petitioner could not achieve the said target. The case of the petitioner, thus, cannot be equated with those who had achieved the target. Non-consideration of his case for absorption, thus, cannot be said to be discriminatory as the case of the petitioner is at variance with case of those employees set out in the writ petition. The counter affidavit of the respondent Bank explains in detail the difference between the two. In my view, the grievance of the petitioner of having been meted out discriminatory treatment in the matter of absorption would not be 8 sustainable in law. Learned counsel for the petitioner tried to impress upon this Court that his performance in achieving the target should be considered in the light of the period for which he was allowed to perform duties of the Bank since, according to him, the respondent Bank did not allow him to perform the duties assigned to him after November, 2009. As I have already noticed, the respondent Bank has disputed the aforesaid stand of the petitioner. It is the case of the respondent Bank that petitioner himself absented from duty for which at least two notices were served on him. This issue of fact cannot be gone into by this Court in writ petition. The said submission of the petitioner is, thus, found unsustainable in law. For all these reasons, this Court does not find any merit in the writ application. It is, accordingly, dismissed. pkj ( Kishore K. Mandal, J.)