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PETITIONER: STATE BANK OF INDIA & ORS.

       Vs.

RESPONDENT: MOHD. MYNUDDIN

DATE OF JUDGMENT17/07/1987

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 AIR 1889            1987 SCR  (3) 532  1987 SCC  (4) 486        JT 1987 (3)    89  1987 SCALE  (2)53

ACT: Service Law--Practice & Procedure:     Selection  Post--Promotion on merit--Decision of  Selec- tion  Committee to prevail unless vitiated by mala fides  or bias. Seniority and satisfactory Service not relevant.     Constitution  of India, Articles 226 & 32: Service  Mat- ters--Promotion--Powers of the Court--Court can direct  con- sideration of the case--Cannot direct promotion.

HEADNOTE:     The  respondent holding a Middle Management Grade  Scale II  post in the appellant Bank was found not fit for  promo- tion  to Grade Scale III by the Selection Committee  in  the year  1979 and superseded. His case was again considered  in the years 1980, 1981 and 1983 but denied promotion. He filed a writ petition in the High Court in 1984 for the issue of a direction  to  the management to promote him to  the  higher post  with effect from 1979 with the assertion that  he  was fully eligible for such promotion.     The Single Judge noticed that in respondent’s  confiden- tial  reports for the years 1977-78, 1979-80 and 1980-81  it had  been recorded that his service was  ’satisfactory’  and that  there were no adverse remarks against him. He,  there- fore, took the view that there was nothing which disentitled the  respondent  to  promotion and that the  action  of  the management  in not promoting him was arbitrary, and  accord- ingly  issued a direction to the appellants to  promote  the respondent  with effect from 1.8.1979 when his  batch  mates were promoted. The Division Bench dismissed the appeal filed by the appellants.     In this appeal by special leave it was contended for the appellants  that  the promotion to Middle  Management  Grade Scale III posts depended not merely upon the eligibility but on merit and such promotion was accorded only after a proper evaluation  by  the Selection Committee of the  service  re- cords, performance appraisal and potentiality of the officer concerned to assume higher responsibilities, that the mere  533 absence  of adverse remarks did not entitle an  employee  to promotion to the next higher grade automatically when promo- tion  was  by selection. that after  applying  the  relevant

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tests  laid  down  by the management for  promotion  to  the Middle Management Grade Scale III it was found from time  to time  that the respondent was not entitled to  be  promoted, and that in any event the High Court was not right in  issu- ing a direction to the management to promote the  respondent to  the higher post particularly in the absence of any  plea of mala fides. Allowing the appeal,     HELD:  The  High Court was not right  in  directing  the appellants  to promote the respondent to the Middle  Manage- ment Grade Scale 111 with effect from 1979. [538C]     If promotion has been denied arbitrarily or without  any reason  ordinarily  the Court can issue a direction  to  the management to consider the case of the officer concerned for promotion  but  it cannot issue a direction to  promote  the officer  concerned  to  the higher post  without  giving  an opportunity  to the management to consider the  question  of promotion.  This  is because the Court is not  by  its  very nature  competent to appreciate the abilities, qualities  or attributes  necessary for the task, office or duty of  every kind  of  post which is to be filled up  by  selection.  The duties  of  such posts may need skills of  different  kinds- scientific.  technical, financial,  industrial,  commercial, administrative,  educational  etc.  The  evaluation  of  the abilities  should, therefore, in the public  interest  ordi- narily  be left to be done by the individual or a  committee consisting of persons who have the knowledge of the require- ments of a given post. [536E-H]     Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the  higher post as a matter of right by virtue of seniority alone  with effect  from the date on which his juniors are promoted.  It is  not  sufficient that in his confidential reports  it  is recorded  that his services are ’satisfactory’.  An  officer may be capable of discharging the duties of the post held by him  satisfactorily  but he may not be fit  for  the  higher post.  Before any such promotion can be effected it  is  the duty  of the management to consider the case of the  officer concerned on the basis of the relevant materials. Of course, the  process of selection adopted by them should  always  he honest and fair. It is only when the process of selection is vitiated  on  the ground of bias, mala fides  or  any  other similar  vitiating circumstances other  considerations  will arise. [536C-E; H; 537A] 534     State  of  Mysore  and Anr. v. Syed  Mohmood  and  ors., [1968]3 S.C.R. 363, applied.     In  the instant case at all relevant times the  case  of the  promotion of respondent has been considered in  accord- ance with law by the selection committee constituted by  the appellant Bank and it did not find him fit for promotion  on all  such occasions. There is no allegation of bias or  mala fides  urged against the members of the selection  committee or the management. The appellants, therefore, cannot be said to have committed any error is not promoting the respondent. ]538B-C]     The appellants are directed to consider the case of  the respondent for promotion within four months from the date of the  judgment.  and if found fit to promote  him  forthwith. [538E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1387  of

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1987.     From  the  Judgment  and Order dated  25.9.1986  of  the Andhra Pradesh High Court in C.W. Appeal No. 1027 of 1986.     A.K. Sen, K. Srinivasamurthy and Kailash Vasdev for  the Appellants.     M.K.  Ramamurthi  and M.A. Krishna Murthy, for  the  Re- spondent. The Judgment of the Court was delivered by     VENKATARAMIAH, J. The State Bank of India and two of its officers have filed this appeal by special leave against the judgment  of  a Division Bench of the High Court  of  Andhra Pradesh  in  Writ Appeal No. 1027 of  1986  dated  25.9.1986 affirming  the  judgment  dated 28.3. 1986  of  the  learned Single  Judge  in Writ Petition No. 5133 of 1984  issuing  a direction to the appellants to promote the respondent, Mohd. Mynuddin to the Middle Management Grade Scale III.     The respondent who was holding the post of the  Manager, S.I.B.  Division,  State Bank of India,  Vijayawada  (Andhra Pradesh)  which was a post in Middle Management Grade  Scale II  filed the above writ petition before the High  Court  in the  year 1984 complaining that he had been  wrongly  denied promotion  to  the Middle Management Grade Scale  III  along with some others who belonged to his batch  535 without  any  reasonable ground, even though  he  was  fully eligible  for such promotion. On the above basis  he  prayed for  the issue of a direction to the management  to  promote him  to the higher post with effect from 1979. According  to the appellants his case was not considered in the year  1979 on account of inadequacy of material regarding his eligibil- ity but when it was brought to the notice of the  management that he had necessary eligibility for the post, his case was considered in 1982 for the vacancies of 1980 and 1981 but he was  not selected. Again his case for promotion was  consid- ered  on  13.8.1983.  Then again he was found  not  fit  for promotion and, therefore, he was not promoted.     The  main contention of the respondent before  the  High Court was that since there were no adverse remarks in any of his  confidential reports, he should have been  promoted  to the  higher post. The learned Single Judge noticed  that  in the  confidential reports relating to the respondent it  had been  recorded  that his service was ’satisfactory’  in  the years  1977-78, 1979-80 and 1980-81 and that there  were  no adverse  remarks against the respondent. The learned  Single Judge,  therefore. found that on the material placed  before the Court there was nothing which disentitled the respondent to  the  promotion in question and that the  action  of  the management  in not promoting him was arbitrary. The  learned Single  Judge  accordingly  allowed the  writ  petition  and issued a direction to the appellants to promote the respond- ent  to the post of Middle Management Grade Scale  III  with effect from 1.8. 1979 when his batch mates were promoted and that  he  should be given all  consequential  benefits.  Ag- grieved  by  the judgment of the learned  Single  Judge  the appellants filed an appeal before the Division Bench of  the High  Court which, as stated earlier. dismissed  the  appeal affirming  the judgment of the learned Single Judge  by  its order dated 25.9. against which this appeal by special leave is filed.     It  is admitted that the posts in the Middle  Management Grade  Scale  III in the State Bank of India  are  posts  to which appointments are made by selection. The State Bank  of India  stated  before the High Court that the  promotion  to Middle Management Grade Scale I11 posts depended not  merely upon  the  eligibility but on merit and such  promotion  was

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accorded  only  after  a proper evaluation  of  the  service records,  performance  appraisal  and  potentiality  of  the officer  concerned  to assume higher  responsibilities.  The evaluation  was done by the Selection Committee.  which  was expected to go into several aspects including the merits and demerits  or  all the candidates who were eligible.  It  was further pleaded that the mere absence of adverse remarks did not entitle an employee to promotion to the next higher 536 grade automatically when promotion was by selection. It  was further pleaded that after applying the relevant tests  laid down by several circulars issued by the Management embodying the  guidelines in respect of the selection of officers  for promotion  to the Middle Management Grade Scale III  it  was found from time to time that the respondent was not entitled to be promoted. It was further pleaded before us that in any event the High Court was not right in issuing a direction to the management to promote the respondent to the higher  post particularly  in the absence of any plea of mala fides.  The learned counsel for the appellants, however, has very fairly stated  that even now the management is willing to  consider the  case  of the respondent for promotion on a  proper  ap- praisal of the relevant material by the Selection Committee.     Whenever promotion to a higher post is to be made on the basis of merit no officer can claim promotion to the  higher post as a matter of right by virtue of seniority alone  with effect  from the date on which his juniors are promoted.  It is  not  sufficient that in his confidential reports  it  is recorded  that his services are ’satisfactory’.  An  officer may be capable of discharging the duties of the post held by him  satisfactorily  but he may not be fit  for  the  higher post.  Before any such promotion can be effected it  is  the duty  of the management to consider the case of the  officer concerned on the basis of the relevant materials. If  promo- tion  has  been  denied arbitrarily or  without  any  reason ordinarily the Court can issue a direction to the management to consider the case of the officer concerned for  promotion but  it  cannot  issue a direction to  promote  the  officer concerned  to the higher post without giving an  opportunity to  the  management to consider the question  of  promotion. There is good reason for taking this view. The Court is  not by  its very nature competent to appreciate  the  abilities, qualities  or attributes necessary for the task,  office  or duty of every kind of post in the modern world and it  would be  hazardous  for  it to undertake  the  responsibility  of assessing  whether a person is fit for being promoted  to  a higher  post  which  is to be filled up  by  selection.  The duties   of  such  posts  may  need  skills   of   different kinds--scientific, technical, financial, industrial. commer- cial, administrative, educational etc. The methods of evalu- ation  of the abilities or the competence of persons  to  be selected for such posts have also become nowadays very  much refined and sophisticated and such evaluation should, there- fore,  in the public interest ordinarily be left to be  done by  the individual or a committee consisting of persons  who have  the knowledge of the requirements of a given post,  to be  nominated  by the employer. Of course.  the  process  of selection adopted by them should always be  537 honest and fair. It is only when the process of selection is vitiated  on  the ground of bias, mala fides  or  any  other similar  vitiating  circumstance other  considerations  will arise.  The nature of the writ that can be issued  in  cases like the one before us has been considered by this Court  in the  State  of Mysore and Anr. v. Syed Mahmood and  Ors.,  [

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1968]  3 S.C.R. 363. In that case rule 43(b) of  the  Mysore State  Civil  Services General Recruitment Rules,  1957  re- quired  promotion  to be made by selection on the  basis  of seniority-cum-merit,  that is seniority subject to the  fit- ness  of the candidate to discharge the duties of  the  post from  among  persons eligible for  promotion.  While  making selections for promotions to the posts of senior statistical assistants from the cadre of junior statistical  assistants, the  State Government did not consider the case of  the  re- spondents  therein who were junior  statistical  assistants, and published a list promoting persons ranking below them in point  of  seniority.  The respondents  therein  filed  writ petition before the High Court. The High Court while  refus- ing to quash the seniority list directed the appellant-State to promote the respondents as from the dates on which  their juniors were promoted and treat their promotion as effective from that date. In the appeal filed against the judgment  of the High Court this Court observed that while making  selec- tions  for  promotion  to the posts  of  senior  statistical assistants from the cadre of junior statistical  assistants, in  1959, the State Government was under a duty to  consider whether  having regard to their seniority and  fitness  they should  be promoted. Since the promotions  were  irregularly made the respondents therein were entitled to ask the  State Government  to reconsider their case. In the  circumstances. this Court observed, that the High Court could only issue  a writ  to the State Government compelling it to  perform  its duty and to consider whether having regard to their seniori- ty and fitness, the respondents should have been promoted on the relevant dates when officers junior to them were promot- ed  and that instead of issuing such a writ the  High  Court had wrongly issued a writ directing the State Government  to promote  them with retrospective effect. This Court  further observed that the High Court ought not to have issued such a writ  without giving the State Government an opportunity  in the  first instance to consider their fitness for  promotion in  1959. The ratio of the above decision is that where  the State Government or a statutory authority is under an  obli- gation to promote an employee to a higher post which has  to be filled up by selection the State Government or the statu- tory  authority  alone should be directed  to  consider  the question whether the employee is entitled to be so  promoted and that the Court should not ordinarily issue a writ to the Government or the statutory authority to promote an  officer straightaway. The principle enunciated in the above decision 538 is equally applicable to the case on hand.     It  is seen that the Selection Committee constituted  by the  State  Bank  of India has considered the  case  of  the respondent for promotion to the vacancies of the years  1980 and  1981 and for the subsequent period from time  to  time. The Selection Committee did not find the respondent fit  for promotion  on all such occasions. There is no allegation  of bias  or mala fides urged against the members of the  Selec- tion  Committee  or the management. On the  material  placed before us we hold that at all relevant times the case of the promotion  of respondent has been considered  in  accordance with  law.  No other contention is urged before us.  On  the facts  and in the circumstances of the case we do  not  find any  error committed by the appellants. The High  Court  was not. therefore, right in directing the appellants to promote the respondent with effect from 1979. As mentioned  earlier. the  learned counsel for the appellants has  submitted  that the Selection Committee constituted by the appellants  would again consider the case of the respondent for promotion on a

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proper appraisal of the relevant material.     In the circumstances, we feel that the direction  issued by the High Court should be set aside and we accordingly  do so.  The appellants are, however, directed to  consider  the case of the respondent for promotion within four months from today  and if on an assessment of the relevant material  the State  Bank of India finds that the respondent is fit to  be promoted, he shall be promoted forthwith.     This  appeal  is accordingly disposed  of.  There  will. however be no order as to costs. P.S.S.                                                Appeal allowed. 539