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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-

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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

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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.

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    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

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    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

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    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.