Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
SH. K.B.SHARMA & ANR.
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT: 28/01/1998
BENCH:
S. SAGHIR AHMAD, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
THE 28TH DAY OF JANUARY, 1998
Present:
Hon’ble Mr. Justice S.Saghir Ahmed
Hon’ble Mr. Justice G.B.Pattanaik
S.S.Javelli, Sr. Adv., Dr. Meera Agarwal, Ramesh Chandra
Mishra, Advs. with him for the appellants
V.R.Reddy, Additional Solicitor General, A.K.Sikri,
N.N.Goswami, Sr.Advs., V.K.Rao, Ms. Madhu Sikri, C.B.Babu,
V.K.Verma, Advs. with them, for the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered:
IN THE MATTER OF
G. B. PATTANAIK, J.
This appeal is directed against the judgment of the
Division Bench of the Punjab & Haryana High Court dated
March 23, 1990, in Letters Patent Appeal No. 310 of 1988. By
the impugned judgment the Division Branch has reversed the
judgment of the learned Single Judge and allowed the LPA.
The appellants are the employees of the New Bank of India
who joined the Bank as clerk in the year 1972. They were
promoted s Accountants in the year 1977. In the year 1980
they were further promoted as Assistant Manager in the same
scale of pay as that of Accountant but special allowance of
Rs.75/- p.m. had been granted. These appellants had
undergone some Probationary period and were confirmed as
Assistant Manager of the Bank. While they were so confirmed
as Assistant Manager of the Bank. While they were so
continuing the Bank was itself taken over by the Union of
India under the Banking Companies (Acquisition and Transfer
of Undertakings) Act, 1980. After the taking over of the
Bank a set of Regulations were framed, called, The New Bank
of India (Officers Service Regulation) 1982, providing for
service conditions of the employers including the
categorisation of the officers and their fitment in the new
grades. The Bank also formulated a set of policy for
promotion, called the "Promotion Policy’ which provided for
the inter so seniority of these employees in different
grades after their fitment and the mode and criteria for
promotion. The appellants who were working as Assistant
Manager raking over of the Bank in the pay scale of Rs.400-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
1110, which was also the scale of pay meant for Accountants
were placed in the Junior Management Grade Scale alongwith
the Accountants. Their seniority in the Junior Management
Grade Scale I was determined under Clause 5.1 of the
Promotion Policy. Being aggrieved by their fitment into the
Junior Management Grade Scale I as well as determination of
their seniority in the said grade in accordance with the
Promotion Policy they filed a Writ Petition challenging the
validity of Regulation 7 as well as Clauses 5.1, 5.5, 6.2
and 7.1 of the Promotion Policy inter aha on the ground that
the Regulation in question has undone the promotion of the
appellants area achieved and as such is violative of
Articles 14 and 16 of are Constitution. It was also
contended that different clauses of the Promotion Policy
indicating the mode for determination of inter so seniority
in the new cadre where the appellants have been fixed in are
also violative of Articles 14 and 16 inasmuch as their
promotion from the post of Accounts to the post of Assistant
Manager has not been given any weightage and such Promotion
Policy, more particularly Clause 5.1 thereof contravenes
Sub-Regulation 5 of Regulation 18.
The respondents on the other hand took the stand that
prior to taking over of the Bank the Accountants and
Assistant managers were drawing the same scale of pay, but
those who were being posted as Assistant Manager were merely
getting an allowance of Rs.75/- per month. The word
‘promotion’ is a misnomer and, therefore, the appellants
cannot claim any right on that score. Further stand of the
respondents was that once the bank was taken over, the
employer had ample powers to determine the service
conditions by framing Rules and Regulations and in exercise
of such power Regulations having been framed and the post
having been categorized to different grades and their
fitment having been indicated there is no justification on
the stand of the appellants that they could not have been
fitted in Junior Management Grade Scale I alongwith the
Accountants. So far as the Promotional Policy is concerned,
it was the stand of the respondents that there has been no
discrimination and due weightage has been given for the
period an employee has served as an Assistant Manager even
for determination of their seniority in the cadre of junior
Management Grade Scale I and as such there has been no
discrimination nor violation of Articles 14 and 16 of the
Constitution. The learned Single Judge, however, on
consideration of the different provisions of the Regulation
as well as the Clauses of Promotion Policy came to hold that
Regulation 7 providing for categorisation and fitment of the
existing officers of the Bank on being taken over its
legally valid and there is no constitutional infirmity and
as such the appellants were rightly put in the Junior
Management Grade Scale I. But so far as the Clause of
Promotion Policy is concerned, the learned Single Judge came
to hold that Clauses 5.1, 5.5, 6.2, and 7.1 are ultra vires
of Regulation 18(5) and are otherwise discriminatory and
violative of Articles 14 and 16 of the Constitution and
accordingly those Clauses of Promotion Policy were struck
down. The appellants did not challenge the judgment of the
learned Single Judge and, therefore, the finding of the
learned Single judge that their fitment into Junior
Management Grade Scale I and that Regulation 7 is
constitutionally valid has become final. The Bank, however,
assailed the judgment of the learned Single Judge striking
down the different Clauses of Promotion Policy, as stated
earlier, by filling a LPA. The Division Bench considered the
different provisions of the Promotion Policy and came to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
hold that the Single Judge committed an error by holding
that unequals have been treated as equals and the said
conclusion cannot be sustained. The Division Bench further
came to hold that no unreasonableness or arbitrariness or
inequality can be found in the Promotional Policy providing
the mode for determination of inter se seniority of the
officers in any particular grade. It also took note of the
fact that even while fixing the seniority under the
Promotion Policy, additional weightage has been provided for
discharging the functions of the manager/Assistant manager
managing one man Bank. Further weightage has also been
provided at the time of consideration for promotion and
therefore, the Clauses of the Promotional Policy cannot be
held to be violative of Articles 14 and 16 of the
Constitution. With these conclusions the judgment of the
learned Single Judge having been set aside and the Clauses
of Promotional Policy having been held to be valid the
appellants have preferred this appeal.
Mr. Javeli, learned senior counsel appearing for the
appellants strenuously urged that the very categorisation
of the officers in the terms of Regulation 7 by putting the
Assistant Managers and the Accountants in one grade is
invalid and has been so held by the Andhra Pradesh High
Court in Sainathan’s case and the Special Leave Petition
against the said judgment has not been entertained by this
Court and as such Regulation 7 must be held to be invalid.
We are unable to accept this contention of Mr. Javeli,
learned senior counsel, inasmuch as in Sainathan’s case only
the inter se seniority of the officers was under challenge
and determination made thereunder by the High Coat was not
interfered with by this Court inasmuch as the Special Leave
Petition was dismissed in limini. Neither the High Court has
struck down Regulation 7 nor this Court had the occasion to
go into that question while dismissing the Special Leave
Petition in limini. That apart, as has been stated earlier,
in the case in hand the learned Single Judge upheld the
validity of Regulation 7 and the appellants did not
challenge the same by filing any appeal and as such the
decision of the learned Single Judge in that respect has
reached finality and cannot be re-opened in an appeal
against the judgment of the Division Bench where the only
question was the validity of different Clauses of the
Promotional Policy. We have, therefore, no hesitation in
rejecting the submission of Mr. Javeli on this score.
Mr. Javeli, learned senior counsel further contended
that the Division Bench of the High Court was in error in
holding that the Clauses of the Promotion Policy are not
discriminatory and does not violate the provisions of
Regulation 18(5). According to the learned counsel the
employes of the erstwhile Bank prior to its taking over who
had been promoted from the post of Accountant to that of
Assistant Manager/Manager in any event cannot be held junior
to the Accounts who after taking over have been placed in
one grade, namely, Junior Management Grade Scale I. The past
services of the appellants as Assistant Manager which is the
promotional post are being completely wiped off by the
Promotion Policy and, therefore, the Policy must be held to
be grossly discriminatory. According to Mr. Javeli, learned
senior counsel under the Policy in question, the seniority
of the employees in Junior Management Grade Scale I is being
determined on the continuous length of service thereby
unequals like Accountants and Assistant Managers are being
treated as equals which per se is a hostile discrimination
and as such the said Clauses of the Promotion Policy must
be struck down.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
Mr. Reddy, learned Additional Solicitor General
appearing for the respondents, on the other hand contended
that the expression ‘promotion’ though had been used in the
orders while posting the appellants as Assistant Manager but
infect it was not a promotion from one cadre to the other,
on the other hand the Accounts and the Assistant Managers
were in one grade scale and, therefore, the argument that
unequals have been treated as equals is of no substance. Mr.
Reddy, learned Additional Solicitor General further
contended that in the Promotional Policy even for
determination of inter se seniority in the Junior
Management Grade Scale I appropriate weightage for services
as Manager/assistant Manager has been given, as is apparent
from Clause 5.5 of the Policy, and the seniority is not
being determined solely on the length of service in the
grade. Mr. Reddy, learned Additional Solicitor General also
further pointed out that even for promotion from Junior
Management Grade Scale I to Middle Management Grade II
weightage for various factors, like, seniority,
educational/professional qualification, Banking knowledge,
performance review and potential are given, as is apparent
from Clause II of the Promotion Policy and as such the
apprehension of the appellants that their services as an
Assistant Manager prior to the taking over of the Bank is
being totally ignored is wholly unfounded and is devoid of
any substance. As such the Division Bench of the High Court
rightly held the Clauses of the Promotion Policy to be intra
vires.
Having heard the learned counsel for the parties and
having examined the provisions of the Regulation as well as
the Clauses of the Promotional Policy we do not find any
infirmity with the conclusions arrived at by the Division
Bench of the High Court so as to be interfered with by this
Court. But since Mr. Javeli learned senior counsel appearing
for the appellants has vehemently urged that the provisions
of the Promotional Policy are constitutionally infirm and
violate sub-regulation 5 of Regulation 18 we are examining
the same in a greater detail. To appreciate the contentions
raised it would be appropriate to extract Regulation 8(2)
and 8(5) and Clauses 5.1, 55, 62 and 7.1 of the Promotion
Policy.
"Regulation 18(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
proceeding grade of scale or the
previous cadre to which they
belonged 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 cadro, as the case may be.
Regulation 18(5):-
Nothing in this Regulation
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
shall affect the seniority among
themselves of the officers as
existing immediately prior to the
appointed date."
"Promotion Policy:-
Clause 5.1 - Seniority of an
officer in a Grade or Scale shall
be reckoned with reference to the
date of his appointment in that
Grade/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
belling in the Bank’s services.
Where two more officers have the
same length of service in such
proceeding Grade or Scale or such
previous cadre their seniority will
be determined with reference to
their seniority in the immediate
proceeding grade or cadre, as the
case may be,"
"Clause 5.5 :- In order to
remove doubts, it is clarified that
seniority in Junior Management
Grade Scale I of different
categories of officers i.e.
Managers Asstt. Incharge Extn.
Counters and Accountants shall be
common, to be determined as per
length of service in the Junior
Management Grade/Scale I. However,
extra weightage for performing
higher repressibilities of
Managers/Asstt. Managers/Incharge
Extn. Countries shall be given as
under:-
(1)Assistant Managers/Incharge
Extn.Counters = 1/2
additional mark for each
completed year of service
or part thereof which is
not less than six months
as Assistant
Managers/Incharge Extn.
Countries.
(2) Managers = 1 additional
mark for each completed
year of service or part
thereof which is not less
than six months as
Manager."
"Clause 7.1 :- In respect of
officers categorised into new
scales of pay under New Bank of
India (Officers) Service
Regulations, 1982 as on the
appointed date, their length of
service in the new scales will be
reckoned as under for the purpose
of eligibility for promotion from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
one grade to another :
(i) Officers who are categorised in
Jr. Management Grade/Scale I
as on the appointed date -
Minimum 7 years of service
required in terms of para 6.2
above will be reckoned from
the date of initial
appointment 9 inclusive of
probation period, if any) in
the Officers’ cadre."
A plain reading of the aforesaid provisions clearly
demonstrates that neither the seniority of the appellants in
the erstwhile Bank before the taking over of the same nor
their services as Assistant Manager, assuming the same to be
a promotion are being wiped off in any manner so as to hold
the provisions of the Promotion Policy to be discriminatory.
On the other had the provisions for a determination of inter
se seniority under the Promotion Policy provide for
additional weightage for the service rendered by an employee
as Assistant Manager in the erstwhile Bank. We also find
sufficient force in the contention of Mr. Reddy, learned
Additional Solicitor General that prior to taking over the
bank the Accountants and Asstt. Manager were in the same
grade scale and the Astt. Manager are in the same grade
scale and the Astt. Manager were getting an additional
allowance of Rs. 75/- p.m. for the onerous nature of duty
they were performing and, therefore, the same is not a
promotion strict sense. But even otherwise the Promotional
Policy having taken care of giving additional weightage for
the services rendered by him as Assistant Manager in
addition to the length of service for Determination of
Seniority in the cadre of Junior Management Grade Scale I
neither any part of the service thus rendered by an employee
has been ignored nor the Policy can be attacked as
discriminatory. We are therefore, in agreement with the
Division Bench of the High Court, of the considered opinion
that the provisions of the Promotional Policy sought to be
challenged in these proceedings are constitutionally valid
and there is no legal infirmity in the same. Even in the
matter of laying down the Policy and criteria for promotion
the very Promotional Policy, more particularly Clause 11
thereof, provides for different weightage for various
factors and as such in laying down the Policy all relevant
factors have been taken into consideration.
In the aforesaid premises, we see no invalidity in the
impugned judgment of the Division Bench of Punjab & Haryana
High Court requiring our interference.
While we decline to interfere with the impugned
judgment of the High Court we make it clear that the
appellants who are stated to have been promoted to higher
grades on the basis of the judgment of the learned single
Judge may not be reverted from the promotional posts they
are occupying notwithstanding their seniority in the cadre
of Junior Management Grade Scale 1 may be lowered down in
implementations of the Provisions of the Promotional Policy.
The appeal is accordingly dismissed with the aforesaid
observations. But in the circumstances, there will be no
order as to costs.