w w w . L a w y e r S e r v i c e s . i n

Punjab National Bank, formerly New Bank of India Officers Association, Moga, through its President S.K. Palta v/s Union of India, through the Secretary, Ministry of Finance (Banking Division), New Delhi, & Others

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    Civil Writ Petition No. 1057 of 1991 (O&M)

    Decided On, 29 March 2012

    At, High Court of Punjab and Haryana


    For the Petitioner: Jaivir Chandail, Amit Jain, Advocates. For the Respondents: R. Kartikeya, Sanjiv Bansal, Advocates.

Judgment Text

K. Kannan, J.


1. The petitioner-Association espouses the cause of Junior Management Grade Officers, who claimed consideration for promotion from Junior Management Grade Scale-I (for short, JMGS-I to Middle Management Grade Scale-II (for short, MNGSII) on the basis of unamended promotion policy of the Bank. The petitioner's claim was on the basis that the Bank had initiated the process of identifying the posts for promotion, enlisted the persons, who were eligible for consideration for promotion upto the particular seniority number and had also issued circulars to all Branches on 14.06.1990 for bio-data of all officers upto the particular seniority number to be supplied for due consideration. The notice issued on that date directed that all the particulars must be collected and sent to New Delhi office before 05.07.1990. At that time, the promotion policy allowed for consideration for promotion on 4 parameters with seniority obtaining primacy. The marks to be assigned were: 50 for seniority; 10 for educational qualification; 10 for performance review and 10 for potential determined through interview/objective written test.

2. Before the issuing of order of promotion, there had been a change of promotion policy which was said to have been formulated after meetings with representatives of the employees of the Bank by the Management and issued on 24.11.1990. The amended policy shifted emphasis to merit instead of seniority and the marks were assigned in the following fashion: 50 marks for performance review; 30 marks for potential through interview;10 for educational qualification; and 10 for weightage for working in different categories of officers. The letter issued with the policy on the day to all Branches states, inter alia, is, 'the promotions from now onwards would only carried out in accordance with the new policy/guidelines. No further action would be taken in pursuance of our Circulars Nos.PERS/47/90 and PERS/59/90, dated 19-5-90 and 14-6-90 respectively.'

3. The learned counsel appearing on behalf of the petitioner would contend that the expression used in the letter dated 24.11.1990 was that the promotion from now onwards meant that only a prospective application of the Rules was contemplated. The learned counsel appearing on behalf of the respondents would contest by saying that this was in any way qualified by the fact that no further action shall be taken pursuant to the circulars issued on 19.05.1990 and 14.06.1990 which were being relied on by the petitioner-Association for claiming that it has obtained a vested right for consideration for promotion. When there was therefore a conscious decision taken to exclude the circulars dated 19.05.1990 and 14.06.1990, it was meant to convey that any person enlisted for filling up 225 vacancies did not obtain any vested right.

4. The learned counsel for the petitioner would rely on the decision of the Hon'ble Supreme Court in Y.V. Rangaiah and others Versus J. Sreenivasa Rao and others-AIR 1983 Supreme Court 852 that held that when a panel is prepared for promotion on the basis of existing rules but before the promotions were effected, even if the Rules were amended, the consideration for promotion must be done only on the basis of the Rules that existed when the panel was prepared and finalized for promotion. The learned counsel also refers to the judgment in Deepak Agarwal and another Versus State of Uttar Pradesh and others-(2011) 6 Supreme Court Cases 725 that held there is no rule of universal application or absolute application that vacancies for promotion could be filled invariably by law existing on date when vacancy arose. The exceptional situation considered by the Hon'ble Supreme Court was referred to para 26 to which the counsel for the petitioner would lay his emphasis on. The Hon'ble Supreme Court observed in para 26 as under:-

'26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the 'rule in force' on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.'

5. The learned counsel would contend that when vacancies were identified and the names of persons, who were required to be promoted had also been identified and when the bio-data had been directed to be given before a particular date on 05.07.1990, any change that had come about subsequently as regard to the promotion policy must be discarded.

6. The counsel for the respondents would refer to the very same decision in Deepak Aggarwal's case, referred to above, that sets out as a proposition of law that there is no universal Rule of application that vacancies for promotion would be filled-up only by the law existing on the day when the vacancy arose must be considered from the point of view of whether the persons, who had been identified as eligible for promotion had actually obtained a vested right. The counsel for the respondents argues that although seniority had a weightage over interview under the pre-amended policy, it was still required to be held that there was a merit composition as well that was relevant for promotion. Even under the unamended promotion policy, 10 marks were allotted for determining of potential. Admittedly, the interview and the objective written test had not been held and, therefore, none of the candidates had obtained a vested right on that date. The counsel would also refer to a decision of the Division Bench of the High Court of Delhi in Dr. Sahadeva Singh Versus UOI and others in WP No.5549 of 2007, dated 28.02.2012 that examined all the decisions relating to the issues of promotion and the relevance of the consideration on the basis of unamended promotion policies. The Court formulated the proposition of law as emerging in para 9 (a) of its judgment, which was as follows:-

'9(a).The general rule is that the vacancies which exist on the date of amendment of rules have to be filled up in accordance with the rules, as they stood prior to amendment, provided the amendment is not retrospective. If the amendment made in the rules is retrospective, even the vacancies which exist on the date of amendment are also required to be filled up as per amended rules;'

7. The learned counsel would, therefore, contend that it was always possible for the employer to stipulate that even the amended Rules were to be applied retrospectively. The partial retrospective application, according to the counsel, was possible by inference to the fact that earlier notifications issued under Annexures P-1 and P-2 on 19.05.1990 and 14.06.1990 were specifically stated not to be taken into account. It is another way of saying that the list prepared already and collection of bio-data was brought to nought by such a process.

8. I am of the view that the persons enlisted as eligible for promotion had to still go through the process of interview before they could have cl

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aimed that they had obtained a vested right. The process had indeed been started, but it had not been culminated to a stage where any person could claim that promotion had become an assured vested right. In such a situation, if the Rules had been amended in the meanwhile, it will be the amended Rule which would be relevant and there is really no universal rule that for any vacancy that had taken place through the existing rule should always be filled up only with reference to the said rule and not by amended rule that is brought subsequently in the manner laid down by the Hon'ble Supreme Court in Deepak Aggarwal's case (supra) and explained by the Delhi High Court. The claim through a mandamus, as sought by the petitioners, cannot avail to the favour of its members. 9. The writ petition ought to therefore fail and it is dismissed as such.