Chief General Manager, State Bank of India and anr. Vs. Parasa Chandra Sekhar - Court Judgment

Excerpt:
- - the grievance of the petitioner was that he was already selected for promotion and the question of again appearing for interview should not arise and that the authorities without any good reason, were withholding his promotion. 7. this is also not a case where the respondent should complain that his case was not being considered for promotion, along with his juniors. on the other hand, the appellant in its counter clearly stated that only after the panel was prepared, the irregularities and the pendency of the disciplinary proceedings were brought to the notice of the higher authorities.orderv. rajagopala reddy, j.1. the appellants are the respondents in the writ petition no. 16984 of 1988. the writ appeal was brought under clause 15 of letters patent, aggrieved by the judgment of the learned single judge in the above writ petition. learned single judge issued writ of mandamus directing the respondents-appellants to promote the petitioner-respondent to the post of middle management grade scale-ii (for short 'mmg-ii') with retrospective effect with all consequential benefits.2. the following few facts need to be noticed: the petitioner-respondent was appointed as rural development officer in the junior management grade in state bank of india in the year 1979. since he was eligible for promotion to the post of mmg-ii, he was called for interview for consideration for promotion under merit channel. he was interviewed by the departmental promotion committee (for short, 'd.p.c.'), on 31-7-1986. it was alleged in his affidavit that the petitioner was successful in the interview and that he was included in the promotion panel and that it was sent to the head office for approval. his name was also found in the list published by the officers federation at sl.no. 99. however, the petitioner-respondent was not given promotion even though many persons included in the selection panel were promoted w.e.f. 1-8-1985. the petitioner-respondent was again called to appear for interview in 1988, for promotion to the same post. the grievance of the petitioner was that he was already selected for promotion and the question of again appearing for interview should not arise and that the authorities without any good reason, were withholding his promotion. he, therefore, refused to attend the interview. he approached this court seeking a writ of mandamus to promote him as mmg-ii w.e.f. 1-8-1985 in pursuance of the interview held on 31-7-1986. the respondent-appellant resisted the claim of the petitioner stating that serious irregularities were alleged against the petitioner in discharge of his duties as rural development officer and the matter was investigated by the bank and a prima facie case was found against him. in fact, the petitioner-respondent was suspended, however, he evaded service of the same but succeeded in filing w.p.no. 11733 of 1987 and obtaining an interim order from this court suspending the order of suspension. the petitioner was, therefore, continuing in service by virtue of the interim order pending the writ petition. a case was also registered by c.b.i. on 4-8-1987 against the respondent under sections 420, 467, 471, 477a of indian penal code, read with sections 5(2) and 5(1)(d) of prevention of corruption act and took up for investigation. it was specifically averred that only after promotion panel was prepared, the above irregularities have come to light and since the case was under investigation by c.b.i., the petitioner was not considered for promotion as per the promotion panel. he was accordingly called for interview by the next d.p.c., in the year 1988, to take appropriate action. 3. learned single judge, on the above pleadings, held that though sealed cover procedure was applicable to the employees of the bank, since no charge-memo has been issued or charge-sheet has been filed, on the date of the consideration for promotion i.e., on 31-7-1986, the petitioner-respondent was entitled for promotion along with his juniors and the action of the appellant-bank, in not granting promotion to him, was found unlawful. accordingly, the learned judge directed the bank to promote the petitioner w.e.f. 1-8-1985. 4. learned counsel for the appellant vehemently contended that as the petitioner-respondent was not actually promoted, the question of implementing the promotion should not arise. several irregularities having been committed by the respondent and since they are under investigation both departmental and c.b.i., the respondent was not entitled to ask for promotion until he was cleared. the petitioner-respondent was also not entitled for any direction to implement the selection panel, since it was prepared by the d.p.c., which was unaware of the allegations of irregularities and the pending disciplinary proceedings against him and in any event a writ of mandamus should not issue directing promotion. 5. learned counsel for the respondent submits that as held by the apex court in union of india vs. k.v. janakiraman, : (1991)iillj570sc , since no charge-memo was given or charge-sheet was filed by the c.b.i., with regard to the alleged irregularities against the respondent, the d.p.c. was not entitled to take them into consideration at the time of his interview for promotion and the management was not right in not implementing the panel and giving him promotion on the mere ground that some charges are at the preliminary stage. 6. the relief sought for by the respondent was for a direction to implement the promotion panel and give him promotion as was given to his juniors. it is trite law that mere inclusion in a panel does not confer any right for promotion. admittedly no order was made giving promotion to the respondent. if such an order was made, then the question might arise whether to give retrospective effect to it. in our view, therefore, the writ is misconceived. the question of the applicability of sealed cover procedure should not properly arise in the instant case. the applicability of the same would have arisen had the respondent appeared for interview when called again in the year 1988 and still felt aggrieved by any order passed on the ground of violation of the decision in janakiraman's case : (1991)iillj570sc or on some other ground. 7. this is also not a case where the respondent should complain that his case was not being considered for promotion, along with his juniors. he himself refused to attend for the interview when called in 1988 and approached this court. 8. sensing the hurdles in his way, the learned counsel for the respondent raised the contention that when the d.p.c. being aware of the disciplinary proceedings or the c.b.i. enquiry, having taken them into consideration, still found him suitable for promotion, then keeping the promotion in abeyance is illegal. this argument lacks foundation in the respondent's pleadings. his affidavit is bereft of any mention of the pending disciplinary proceedings against him. much less of the consideration of the same by the d.p.c. on the other hand, the appellant in its counter clearly stated that only after the panel was prepared, the irregularities and the pendency of the disciplinary proceedings were brought to the notice of the higher authorities. the learned judge was not right in assuming that the d.p.c., was not unaware of the pendency of the disciplinary proceedings. it is, therefore, necessary, even in accordance with janakiraman's case (1 supra) that the record of the respondent including the disciplinary proceedings should be placed before the d.p.c., to consider his case for promotion. since the case of the respondent is in cold storage over several years, it is necessary for the bank to convene the d.p.c., within one month from today to consider the claim of the respondent for promotion. the appellant-bank should expedite the disciplinary proceedings and complete the same within two months from the date of receipt of a copy of this order. 9. the judgment of the learned judge in the writ petition is set aside. the appellant-bank is directed -(1) to convene the d.p.c. within one month from today to consider the case of the respondent for promotion to the post of mmg-ii cadre. (2) the bank shall complete the disciplinary proceedings within two months from the date of receipt of a copy of this order. (3) if the respondent was not given promotion and if the result of his assessment was kept in the sealed cover, and if the respondent was completely exonerated in the disciplinary proceedings or court proceedings, he should be given notional promotion from the date he would have been promoted but for the disciplinary proceedings or court proceedings, with all consequential benefits. (4) if any penalty was imposed as a result of the disciplinary proceedings or court proceedings, the findings of the sealed cover shall not be acted upon. his case shall be considered by the d.p.c., in its next meeting.10. the writ appeal is disposed of accordingly. no costs.

Judgment:
ORDER

V. Rajagopala Reddy, J.

1. The appellants are the respondents in the Writ Petition No. 16984 of 1988. The writ appeal was brought under Clause 15 of Letters Patent, aggrieved by the judgment of the learned single Judge in the above writ petition. Learned single Judge issued writ of mandamus directing the respondents-appellants to promote the petitioner-respondent to the post of Middle Management Grade Scale-II (for short 'MMG-II') with retrospective effect with all consequential benefits.

2. The following few facts need to be noticed: The petitioner-respondent was appointed as Rural Development Officer in the Junior Management Grade in State Bank of India in the year 1979. Since he was eligible for promotion to the post of MMG-II, he was called for interview for consideration for promotion under merit channel. He was interviewed by the Departmental Promotion Committee (for short, 'D.P.C.'), on 31-7-1986. It was alleged in his affidavit that the petitioner was successful in the interview and that he was included in the promotion panel and that it was sent to the Head Office for approval. His name was also found in the list published by the Officers Federation at Sl.No. 99. However, the petitioner-respondent was not given promotion even though many persons included in the selection panel were promoted w.e.f. 1-8-1985. The petitioner-respondent was again called to appear for interview in 1988, for promotion to the same post. The grievance of the petitioner was that he was already selected for promotion and the question of again appearing for interview should not arise and that the authorities without any good reason, were withholding his promotion. He, therefore, refused to attend the interview. He approached this Court seeking a writ of mandamus to promote him as MMG-II w.e.f. 1-8-1985 in pursuance of the interview held on 31-7-1986. The respondent-appellant resisted the claim of the petitioner stating that serious irregularities were alleged against the petitioner in discharge of his duties as Rural Development Officer and the matter was investigated by the Bank and a prima facie case was found against him. In fact, the petitioner-respondent was suspended, however, he evaded service of the same but succeeded in filing W.P.No. 11733 of 1987 and obtaining an interim order from this Court suspending the order of suspension. The petitioner was, therefore, continuing in service by virtue of the interim order pending the writ petition. A case was also registered by C.B.I. on 4-8-1987 against the respondent under Sections 420, 467, 471, 477A of Indian Penal Code, read with Sections 5(2) and 5(1)(d) of Prevention of Corruption Act and took up for investigation. It was specifically averred that only after promotion panel was prepared, the above irregularities have come to light and since the case was under investigation by C.B.I., the petitioner was not considered for promotion as per the promotion panel. He was accordingly called for interview by the next D.P.C., in the year 1988, to take appropriate action.

3. Learned single Judge, on the above pleadings, held that though sealed cover procedure was applicable to the employees of the Bank, since no charge-memo has been issued or charge-sheet has been filed, on the date of the consideration for promotion i.e., on 31-7-1986, the petitioner-respondent was entitled for promotion along with his juniors and the action of the appellant-Bank, in not granting promotion to him, was found unlawful. Accordingly, the learned Judge directed the Bank to promote the petitioner w.e.f. 1-8-1985.

4. Learned Counsel for the appellant vehemently contended that as the petitioner-respondent was not actually promoted, the question of implementing the promotion should not arise. Several irregularities having been committed by the respondent and since they are under investigation both departmental and C.B.I., the respondent was not entitled to ask for promotion until he was cleared. The petitioner-respondent was also not entitled for any direction to implement the selection panel, since it was prepared by the D.P.C., which was unaware of the allegations of irregularities and the pending disciplinary proceedings against him and in any event a writ of mandamus should not issue directing promotion.

5. Learned Counsel for the respondent submits that as held by the Apex Court in Union of India vs. K.V. Janakiraman, : (1991)IILLJ570SC , since no charge-memo was given or charge-sheet was filed by the C.B.I., with regard to the alleged irregularities against the respondent, the D.P.C. was not entitled to take them into consideration at the time of his interview for promotion and the Management was not right in not implementing the panel and giving him promotion on the mere ground that some charges are at the preliminary stage.

6. The relief sought for by the respondent was for a direction to implement the promotion panel and give him promotion as was given to his juniors. It is trite law that mere inclusion in a panel does not confer any right for promotion. Admittedly no order was made giving promotion to the respondent. If such an order was made, then the question might arise whether to give retrospective effect to it. In our view, therefore, the writ is misconceived. The question of the applicability of sealed cover procedure should not properly arise in the instant case. The applicability of the same would have arisen had the respondent appeared for interview when called again in the year 1988 and still felt aggrieved by any order passed on the ground of violation of the decision in Janakiraman's case : (1991)IILLJ570SC or on some other ground.

7. This is also not a case where the respondent should complain that his case was not being considered for promotion, along with his juniors. He himself refused to attend for the interview when called in 1988 and approached this Court.

8. Sensing the hurdles in his way, the learned Counsel for the respondent raised the contention that when the D.P.C. being aware of the disciplinary proceedings or the C.B.I. enquiry, having taken them into consideration, still found him suitable for promotion, then keeping the promotion in abeyance is illegal. This argument lacks foundation in the respondent's pleadings. His affidavit is bereft of any mention of the pending disciplinary proceedings against him. Much less of the consideration of the same by the D.P.C. On the other hand, the appellant in its counter clearly stated that only after the panel was prepared, the irregularities and the pendency of the disciplinary proceedings were brought to the notice of the higher authorities. The learned Judge was not right in assuming that the D.P.C., was not unaware of the pendency of the disciplinary proceedings. It is, therefore, necessary, even in accordance with Janakiraman's case (1 supra) that the record of the respondent including the disciplinary proceedings should be placed before the D.P.C., to consider his case for promotion. Since the case of the respondent is in cold storage over several years, it is necessary for the Bank to convene the D.P.C., within one month from today to consider the claim of the respondent for promotion. The appellant-Bank should expedite the disciplinary proceedings and complete the same within two months from the date of receipt of a copy of this order.

9. The judgment of the learned judge in the writ petition is set aside. The appellant-Bank is directed -

(1) To convene the D.P.C. within one month from today to consider the case of the respondent for promotion to the post of MMG-II cadre.

(2) The Bank shall complete the disciplinary proceedings within two months from the date of receipt of a copy of this order.

(3) If the respondent was not given promotion and if the result of his assessment was kept in the sealed cover, and if the respondent was completely exonerated in the disciplinary proceedings or Court proceedings, he should be given notional promotion from the date he would have been promoted but for the disciplinary proceedings or Court proceedings, with all consequential benefits.

(4) If any penalty was imposed as a result of the disciplinary proceedings or Court proceedings, the findings of the sealed cover shall not be acted upon. His case shall be considered by the D.P.C., in its next meeting.

10. The writ appeal is disposed of accordingly. No costs.