Full Judgment Text
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CASE NO.:
Appeal (civil) 4593-4594 of 2002
PETITIONER:
Ramrao & Ors.
RESPONDENT:
All India Backward Class Bank Employees Welfare Association & Ors.
DATE OF JUDGMENT: 05/01/2004
BENCH:
S.B. Sinha & Arun Kumar.
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NOS.4595-96 OF 2002 & 4597 OF 2002
S.B. SINHA, J :
Civil Appeal Nos. 4593-4594 of 2002 and 4595-4596 of 2002
have been filed by the appellants thereof (hereinafter referred to as
"Promotees") upon obtaining permission to file the Special Leave
applications against the judgment and order dated 10.8.2001 passed
by the High Court of Judicature at Bombay Bench at Aurangabad in
Writ Petition No. 255/1990. Writ Petition No. 1551/1990 has been
filed by All India Backward Class Bank Employees Welfare
Association (hereinafter referred to as "Association") which is the
respondent No. 1 in the aforementioned appeals and the appellant in
Civil Appeal No. 4597/2002.
FACTS:
The Promotees are employees of Marathwada Gramin Bank
(hereinafter referred to as "Bank").
A circular bearing No. Ho/ST/Cir NO. 35/88 (159) dated
8.11.1988 was issued by the Respondent Bank notifying the eligibility
criteria for internal promotion to the posts of Officers and Field
Supervisors. The Board of Directors of the Bank passed a resolution
dated 10.11.1989 approving the proposal to fill in 23 posts of Officers
and 45 posts of Field Supervisors by promotion fixing the cut off date
for eligibility therefor as on 31.8.1989. The promotions were to be
made on application of the principle of seniority-cum-merit. Out of 45
posts of Field Supervisors, 13 including the backlog were proposed to
be reserved for Scheduled Tribe Category. On or about 27.11.1989
the Respondent Bank issued another circular bearing No. HO/ST/Gr
No. 43/89 notifying the vacancies.
Writ Petition No. 255/1990 was filed by the respondent No. 1
herein questioning the cut off date of 31.8.1989 fixed by the Bank for
deciding the eligibility of its employees for promotion to the posts of
Field Supervisors and Officers.
On 2.2.1990, the High Court passed an interim order in the said
Writ Petition in the following terms:
"Notice before admission returnable within
four weeks. Interim relief in terms of prayer
clause (C) in the meanwhile".
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Thereafter the said interim order dated 2.2.1990 was modified
by the High Court in terms of an order dated 9.4.1990 directing that
the appointment made shall be subject to the result of the writ
petition.
In the meantime, interview of eligible candidates was held
between 10.2.1990 to 15.2.1990.
It is contended that no eligible Scheduled Tribe candidate was
available for promotion in the vacancies reserved for Scheduled Tribe
category in the Post of Field Supervisor as on the cut off date of
31.8.1989 or even thereafter including for filling up the backlog and,
thus, the Board of Directors passed a resolution on or about
17.4.1990 for dereserving the vacancies which were reserved for
Scheduled Tribe candidates. The said proposal was also forwarded
to the Ministry of Finance, Government of India as well as to the
Sponsor Bank and NABARD for requisite permission stating that
there was no eligible Scheduled Tribe candidate for appointment on
the said 13 reserved posts.
The Ministry of Finance, Government of India approved the
proposal for dereservation of 13 vacancies which were earlier
reserved for the Scheduled Tribe candidates. NABARD also granted
its permission for dereservation of said 13 vacancies.
The contention of the appellants is that by reason of such
dereservation the said vacancies became available for being filled up
by the candidates belonging to the general category. During
pendency of the aforementioned writ petition, interview was held in
between 10.2.1990 and 15.2.1990. The Association filed the writ
petition marked as W.P. 255 of 1990, as noticed hereinbefore, only
questioning the cut off data. Another writ petition was filed by one
Shri Ashok which was marked as writ petition No. 1551 of 1990
questioning the cut off date as also the order of promotion. However,
in both the writ petitions, neither the promotees nor the Union of India
or NABARD were impleaded as parties. In the said writ petitions the
order of dereservation was also not questioned.
HIGH COURT JUDGMENT :
By reason of the impugned judgment, a Division Bench of the
High Court held that the cut off date fixed by the respondent Bank
was valid. It further held that the Bank did not have any questionable
motive in fixing the said cut off date and the explanation given by it
being a plausible one could not be rejected. The contention raised by
the Association to the effect that the said circular dated 8.11.1988
was issued for the purpose of frustrating the reservation policy did not
find favour with the High Court, as upon a perusal of the select panel,
it became explicit that the candidates from the SC categories had
been appointed. The High Court further observed that even if in
place and stead of 31.12.1989 being the cut off date the same was to
be taken as 31.3.1990, nothing had been brought on records to show
that any Scheduled Tribe candidate would have become eligible.
The High Court further opined that the Scheduled Tribe
candidates having been appointed sometimes in the year 1994
onwards, the requirements of six years service as set out in the rules
could not have been waived by the Bank by its impugned resolution.
It, however, came to the conclusion that reservation policy being in
issue in the said writ petition, the challenges raised therein should not
limit the scope thereof. Keeping in view the subsequent action taken
by the Bank including the issue of dereservation and appointment of
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open category candidates to the respective posts pursuant to the
decision of dereservation, the High Court proceeded to analyse the
requirements for notifying dereservation as contained in the Brochure
and held that the Bank did not follow the requisite procedure to
undertake a fresh survey regarding the availability of the eligible
candidates from the respective categories even though such
candidates were not available on the cut off date. It was observed :
"We, therefore, direct the bank to examine the
availability of candidates belonging to ST
category for promotion to the post of Field
Supervisor and Officer who became eligible
from 18.4.1990 to 17.4. 1991 as well as during
the next two years i.e. up to 17.4.1993 thereby
making a period of 3 years for filling in the
backlog of such reserved category
candidates, by examining the caste claims of
all such candidates including their service
record so as to fulfil the principle of seniority-
cum-merit. This shall be done within a period
of two months from today and those
scheduled tribe category candidates who are
found to be eligible, shall be given promotion
to the post of Field Supervisor and/ or officer,
as the case may be, and the open category
candidates who have been appointed against
such posts shall vacate these posts forthwith.
We clarify that while withdrawing the
appointments made in favour of the open
category candidates against reserved posts,
the candidates who joined last would go first
and the bank shall not be entitled to recover
any amount from them as they have already
worked in the higher posts. Their pay fixation
in the lower posts shall be done as per the
rules. The reserved category candidates, who
shall be so promoted, shall not be entitled to
claim arrears in salary, but for the purpose of
seniority in the respective grades, the date of
promotion shall be counted.
Promotees have filed appeals upon obtaining leave of this
Court questioning the directions issued by the High Court.
Association’s appeal is against that part of the judgment wherein ’cut
off’ date fixed by the Bank has been found to be valid.
SUBMISSIONS :
The learned counsel appearing on behalf of the Promotees
contended that the High Court committed a manifest error in passing
the impugned judgment as in the writ petitions neither they were
impleaded as parties nor the order of dereservation was in question.
Besides, supporting the impugned judgment, the contention of
the Association, on the other hand, is that keeping in view the fact
that 29 vacancies are existing in the Bank as the concerned
employees have either resigned, dismissed or died, the appellants as
also the Scheduled Tribe Candidates can be accommodated against
the said posts. It was urged that although the Association itself did
not question the order of promotion, the same was done by Ashok in
his writ petition and, thus, the High Court cannot be said to have
committed an error in passing the impugned judgment. Furthermore,
13 other writ petitions were filed by other employees of the Bank
questioning the appointment of the appellants herein which had also
been disposed of relying on or on the basis of the impugned
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judgment.
It was argued that the Bank was not correct in raising the
contention before the High Court that no eligible Scheduled Tribe
candidate was available for promotion to the posts of officers as on
31st December, 1985 as two persons names of whom appeared at Sl.
Nos. 67 and 87 of the Seniority List were members of Scheduled
Tribe. It has been contended that as on today as many as 13
Scheduled Tribe candidates are available for promotion to the post of
Officers and, thus, this Court may direct the respondent Bank to
adjust the appellants as also the Scheduled Tribe candidates against
the existing vacancies. Mr. Ganpule, would further submit that the
cut-off date fixed by the Bank was arbitrary and, therefore, the same
was liable to be declared as such by the High Court.
The learned counsel appearing on behalf of the Bank, however,
has drawn our attention to the counter affidavit filed in Civil Appeal
No. 4597 of 2002 wherein inter alia it has been averred:
"iv) That the document at the Serial No. 5
(under the heading "Extract of Seniority List as
on 31.12.1985") of the additional documents
sought to be brought on record by the
petitioners is also grossly misleading as it
suppresses the material fact known to the
petitioners that against the names of persons
at Serial No. 52 and 67 the said list
erroneously mentioned ’ST’ which error was
subsequently corrected after due notice to the
concerned persons Shri Pendalwar Shivaji
Ramanna and Shri Tehra Kiransinh
Gangusingh. Accordingly, these persons
were called for the interview for promotion in
the year 1990 as General Category
candidates."
It was urged that all the requisite procedures for dereservation
had been complied with and in that view of the matter the High Court
committed a manifest error in passing the impugned judgment.
The learned counsel would further submit that keeping in view
the present policy decision of the Bank, it is not possible to make any
further appointment adjusting the ’Promotees’ and the eligible
members of the Association and in this behalf our attention has been
drawn to the following statements made in paragraph 3 of the counter
affidavit:
"3(i) In the instant Special Leave Petition it is
erroneously pleaded that the ST category
employees can be considered for promotions
to cadre of officers without disturbing status of
the petitioner as there are vacancies in the
officers’ cadre. In this regard, it is respectfully
submitted that although, it is true that due to
one or the other reasons certain officers
ceased to work with the respondent bank, but
according to the Man Power Norms in
Regional Rural Banks’ introduced by the
Government of India, Ministry of Finance,
Department of Economic Affairs (Banking
Division), New Delhi, vide its Order/
Memorandum, F.No. 3/(24)/99 RRB dated
22.1.2001 and adopted by the Board of
Directors of the respondent Bank, in the
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meeting dated 18.5.2001, there is no shortfall
in manpower in the officer grade, of the
respondent Bank and, on the contrary, there
exists an excess manpower in the said grade.
ii) It further needs to be kindly considered
by your Lordships that the accumulated losses
of the respondent bank are to the tune of Rs.
53.47 cores as on 31.3.2001. In view of the
implementation of manpower planning norms
and in view of the accumulated losses of the
respondent Bank, it is not possible for the
respondent Bank to add manpower in officer
cadre, without getting the corresponding
number of posts vacated, inter alia, by
reversion of the petitioner."
GRANT OF PROMOTIONS :
The respondent Bank is a Regional Rural Bank established
under the Regional Rural Banks Act, 1976 of which the Bank of
Maharashtra is the sponsor Bank. It appears that in terms of an
award issued by the National Industrial Tribunal in 1991 which was
given retrospective effect from 1.9.1987, 23 vacancies in officers
cadre (Junior Management-I) and 45 vacancies in Field Supervisors
cadre (which have since been merged in the officers’ cadre) were
identified for being filled in by internal promotion from amongst the
eligible Field Supervisors and clerks working in the Bank. It is also
not in dispute that promotion to the said posts are governed under the
Regional Rural Banks (Appointment & Promotion of Officers and
other Employees) Rules 1981 (The Rules).
It is furthermore not in dispute that for the purpose of effecting
promotions to the post of Field Supervisor or Officer, the following
conditions laid down in the Rules were required to be taken into
consideration:
"5(b)(ii) For Promotion:
Confirmed Senior Clerk-cum-Cashier with
minimum of four years service as Senior
Clerk-cum-Cashier.
OR
(b) Six years service either as confirmed
Junior Clerk-cum-Cashier or Junior Clerk-
cum-Typist or Stenographer or Steno Typist or
as a confirmed Senior or Junior Clerk-cum-
Cashier, as the case may be. For the first six
years after the year Bank, post of Field
Supervisor will be filled only by direct
recruitment and the promotion quota of these
posts will be notionally carried forward and
made good by promotions in the subsequent
years. From the year in which the back log, if
any, in the promotion quota is wiped out, the
stipulated quota of fifty percent recruitment
from the open market and fifty percent by
promotion will be adhered to.
6(b)(ii) For Promotions:
Confirmed Field Supervisor with a minimum of
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five years service as Field Supervisor. The
above condition of minimum service is
relaxable as stated below:
(i) Regional Rural Banks which have not
completed three years of existence after their
year of establishment will fill up all vacancies
in the officer cadre only by direct recruitment.
(ii) Regional rural banks which have
completed three years of existence after the
year of their establishment but have not
completed five years, may, but only with prior
approval of National Bank, consider for
promotion confirmed Field Supervisors having
a minimum of three years experience in that
capacity. However, if even after this
relaxation suitable candidates are not
available, the vacancies to be filled by direct
recruitment and the vacancies so filled will be
notionally carried forward to the subsequent
years till the back log, if any, is cleared.
Thereafter, the stipulated quota of fifty per
cent from open market and fifty per cent by
promotion will be adhered to".
The candidates eligible for promotion were subjected to an
interview by the Selection Committee constituted in terms of Rule
10(1)(b) of the Rules pursuant whereto and in furtherance whereof
the appointments in questions were made.
DERESERVATION :
It appears that the respondent Bank initially reserved 8 posts of
’officers’ for the Scheduled Tribe Candidates and 13 thereof for the
posts of ’Supervisors’. Chapter VII of the brochure admittedly laid
down the procedure for dereservation. Clause 7.6 provides for carry
forward of reservations whereas Clause 7.7 deals with exchange of
reservation between SC/ST and vice-versa. Clause 7.9 provides for
reservation and carry forwarding of a single vacancy reserved for
scheduled caste or scheduled tribe candidates which may be filled up
by a general candidate, as the case may be.
As regard difficulty in carrying out the policy of reservation it
appears that the Central Government by a letter dated 19th
September, 1989 advised the respondent Bank to approach the
Sponsor Bank for guidance and only in the event a specific issue
arises, a reference was required to be made to the Government
through the Sponsor Bank. The Bank of Maharashtra admittedly
having been approached to give approval for the proposal of
dereservation by the respondent Bank having regard to non-
availability of any Scheduled Tribe candidate for promotion by a letter
dated 18th August, 1990 granted such permission and forwarded the
proposal for final approval of the Government of India. The NABARD
also granted approval to the proposal of dereservation by its letter
dated 31st August, 1990. As indicated hereinbefore, the Central
Government had also approved the same.
EFFECT OF ABSENCE OF DERESERVATION AS AN ISSUE :
Order of dereservation was admittedly not in issue before the
High Court. In the aforementioned fact situation, we are of the
opinion that the High Court in absence of any specific challenge to
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the dereservation policy adopted by the Bank could not have gone
into the said question. It is true that the High Court is entitled to take
into consideration the subsequent events, but the same can only be a
relevant factor for the purpose of moulding the reliefs. But while
moulding such reliefs, the High Court could neither have considered
grant of a relief wherefor no factual foundation existed was laid in the
pleadings of the parties.
It has been accepted at the Bar that no factual foundation was
laid down in the writ petition before the High Court as to whether the
Bank complied the requirement of Clause 7.7 of the procedure
providing for exchange of reservation between SC/ST and vice-versa.
The question as to whether any eligible scheduled caste candidate
was available for promotion to the post of Officer or not is essentially
a question of fact. It was, thus, not open to the High Court to advert
to the said question.
EFFECT OF ABSENCE OF THE APPELLANTS AS PARTIES :
It is true that the order of promotion was in question in Writ
Petition No. 1551 of 1990 at the instance of one Ashok but even in
the said writ petition the Promotees were not impleaded as parties.
As in the case of the Association, even in the writ petition filed by
Ashok, the order of dereservation passed by Union of India or
NABARD or the Sponsor Bank had not been questioned. Admittedly,
Union of India or NABARD were not parties in the said writ petitions.
An order issued against a person without impleading him as a party
and, thus, without giving him an opportunity of hearing must be held
to be bad in law. The appellants herein, keeping in view the fact that
by reason of the impugned direction the orders of promotion effected
in their favour had been directed to be withdrawn indisputably were
necessary parties. In their absence, therefore, the writ petition could
not have been effectively adjudicated upon. In absence of the
’Promotees’ as parties, therefore, it was not permissible for the High
Court to issue the directions by reason of the impugned judgment.
ANALYSIS :
It is not the contention of the Association that procedures for
effecting promotion had not been followed. The promotees were,
admittedly eligible for promotion and they had, thus, legally been
promoted. The only question which was raised related to compliance
on the part of the Bank as regard the procedure of dereservation.
The High Court, therefore, was required to consider the said question
only in the event, the factual foundation therefor had been laid down
in the writ petition. The Association did not file even any
supplementary affidavit or an application for amendment of the writ
petition praying for a relief as regard quashing of the order of
dereservation or bringing the appellants herein as parties thereto in
the writ petition. In absence of any challenge to the order of
dereservation and in absence of the Promotees having been
impleaded as parties, the impugned directions could not have been
issued by the High Court, more so when the appellants herein had
not been given an opportunity of being heard. Once dereservation is
made, the vacancies became available for being filled up by general
category candidates and, thus, therefor the respondent Bank was not
required to reexamine the question of availability of the Scheduled
Tribe candidates for appointment on dereserved vacancies. The view
taken by the High Court that even after dereservation was made, the
Bank was required to reexamine the availability of ST candidates on
the dereserved vacancies, was, therefore, not correct particularly
when the High Court itself found that the cut off date being 31.8.1989
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was correctly fixed by the Bank.
CUT OFF DATE :
It is now well-settled that for the purpose of effecting promotion,
the employer is required to fix a date for the purpose of effecting
promotion and, thus, unless cut off date so fixed is held to be arbitrary
or unreasonable, the same cannot be set aside as offending Article
14 of the Constitution of India. In the instant case, the cut off date so
fixed having regard to the directions contained by the National
Industrial Tribunal which had been given a retrospective effect cannot
be said to be arbitrary, irrational, whimsical or capricious.
The learned counsel could not point out as to how the said date
can be said to be arbitrary and, thus, violative of Article 14 of the
Constitution of India.
It is not in dispute that a cut-off date can be provided in terms of
the provisions of the statute or executive order. In University Grants
Commission v. Sadhana Chaudhary & Ors., [(1996) 10 SCC 536]. It
has been observed :
"21 \005 It is settled law that the choice of a
date as a basis for classification cannot
always be dubbed as arbitrary even if no
particular reason is forthcoming for the choice
unless it is shown to be capricious or
whimsical in the circumstances. When it is
seen that a line or a point there must be and
there is no mathematical or logical way of
fixing it precisely, the decision of the
legislature or its delegate must be accepted
unless it can be said that it is very wide off the
reasonable mark. (See: Union of India v.
Parameswaran Match Works (1975) 1 SCC
305: (1975) 2 SCR 573 at p. 579 and Sushma
Sharma (Dr) v. State of Rajasthan (1985
Supp SCC 45 : 1985 SCC (L&S) 565: (1985)
3 SCR 243) at p. 269.)
If a cut-off date can be fixed, indisputably those who fall within
the purview thereof would form a separate class. Such a
classification has a reasonable nexus with the object which the
decision of the Bank to promote its employee seeks to achieve. Such
classifications would neither fall within the category of creating a
class within a class or an artificial classification so as to offend Article
14 of the Constitution of India.
Whenever such a cut-off date is fixed, a question may arise as
to why a person would suffer only because he comes within the
wrong side of the cut-off date but, the fact that some persons or a
section of society would face hardship, by itself cannot be a ground
for holding that the cut-off date so fixed is ultra vires Article 14 of the
Constitution.
In State of W.B. v. Monotosh Roy & Anr. [(1999) 2 SCC 71], it
was held : -
"13. In All India Reserve Bank Retired
Officers’ Association v. Union of India, 1992
Supp (1) SCC 664 : 1992 SCC (L&S) 517 :
(1992) 19 ATC 856 a Bench of this Court
distinguished the judgment in Nakara, (1983)
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1 SCC 305 : 1983 SCC (L&S) 145 and
pointed out that it is for the Government to fix
a cut-off date in the case of introducing a new
pension scheme. The Court negatived the
claim of the persons who had retired prior to
the cut-off date and had collected their retiral
benefits from the employer. A similar view
was taken in Union of India v. P.N. Menon,
(1994) 4 SCC 68 : 1994 SCC (L&S) 860 :
(1994) 27 ATC 515. In State of Rajasthan v.
Amrit Lal Gandhi (1997) 2 SCC 342 : 1997
SCC (L&S) 512 : JT (1997) 1 SC 421 the
ruling in P.N. Menon case (supra) was
followed and it was reiterated that in matters
of revising the pensionary benefits and even
in respect of revision of scales of pay, a cut-off
date on some rational or reasonable basis has
to be fixed for extending the benefits.
14. In State of U.P. v. Jogendra Singh
(1998) 1 SCC 449 : 1998 SCC (L&S) 300 a
Division Bench of this Court held that
liberalized provisions introduced after an
employee’s retirement with regard to retiral
benefits cannot be availed of by such an
employee. In that case the employee retired
voluntarily on 12-4-1976. Later on, the
statutory rules were amended by Notification
dated 18-11-1976 granting benefit of
additional qualifying service in case of
voluntary retirement. The Court held that the
employee was not entitled to get the benefit of
the liberalized provision which came into
existence after his retirement. A similar ruling
was rendered in V. Kasturi v. Managing
Director, State Bank of India (1998) 8 SCC 30
: JT (1998) 7 SC 147.
15. The present case will be governed
squarely by the last two rulings referred to
above. We have no doubt whatever that the
first respondent is not entitled to the relief
prayed for by him in the writ petition\005 \005 \005"
In Vice Chairman & Managing Director, A.P.S.I.D.C. Ltd. & Anr.
Vs. R. Varaprasad & Ors. [2003 (4) Supreme 245] in relation to ’cut
off’ date fixed for the purpose of implementation of Voluntary
Retirement Scheme, it was said :
"...The employee may continue in service in
the interregnum by virtue of clause (i) but that
cannot alter the date on which the benefits
that were due to an employee under the VRS
to be calculated. Clause (c) itself indicates
that any increase in salary after the cut off
point/date cannot be taken into consideration
for the purpose of calculation of payments to
which an employee is entitled under the VRS."
The High Court in its impugned judgment has arrived at a
finding of fact that the Association had failed to prove any malice on
the part of the authorities of the Bank in fixing the cut off date. A plea
of malice as is well-known must be specifically pleaded and proved.
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Even such a requirement has not been complied with by the writ
petitioners.
CONCLUSION :
An upshot of the above discussions is that the High Court
could not have issued the impugned directions in absence of the
promotees having not been impleaded as parties. Furthermore, the
order of dereservation was not under challenge.
In these appeals, this Court is not concerned with the effect of
the orders passed by the High court in the writ petitions filed by 13
Scheduled Tribe candidates. We must, however, notice that it has
been stated at the Bar that the said writ petitions had been disposed
of only relying on or on the basis of the impugned judgment. What
would be the effect of the orders passed in the said writ petitions is
not a matter which we have been called upon to determine. Suffice it,
however, to point out that in relation to the said orders also the
requisite consequences of setting aside the judgment of the High
Court must ensue and it would be open to the High Court to pass
appropriate orders in accordance with law in appropriate
proceedings.
Submission of Mr. Ganpule to the effect that both the appellants
and the Scheduled Tribe candidates can be adjusted in view of the
fact that 29 posts are lying vacant is also not a matter which can be
decided by this Court for the first time in these appeals. As noticed
hereinbefore, the Bank had categorically stated that having regard to
the changed situation, they are not in a position to make any further
promotions to the post of ’officers’. This Court, in the aforementioned
situation, cannot, thus, issue any directions upon the Bank to change
its policy decision and accommodate the Scheduled Tribe candidates
in violation of its own policy decision. It is for the Bank, the Sponsor
Bank as also NABARD to take an appropriate decision in this matter.
For the reasons aforementioned, the impugned judgments of
the High Court cannot be sustained which are set aside accordingly.
Civil Appeal Nos. 4593-4594 and 4595-4596 of 2002 are allowed;
whereas Civil Appeal No.4597 of 2002 is dismissed. No costs.