JUDGMENT S. Ravindra Bhat, J.
1. The petitioner is claiming reliefs of, inter alia, a declaration that he is entitled to the Middle Management Scale-II (hereafter II MMSGS II) i.e. in the pay scale of Rs. 6210-9950/- w.e.f. 08.12.1980 and also a direction to the respondent (hereafter called the PNB) to promote him as Manager from that date and grant consequential benefits.
2. The petitioner was an employee of the erstwhile New Bank of India. The management of the Bank was taken over by the Central Government in the year 1980. Subsequently it was amalgamated with the PNB. At the relevant time, the petitioner was working as an officer in the JMG Scale-1. Pursuant to a notification/circular issued by the erstwhile New Bank of India on 08.11.1980, he applied for the post of Manager in the five branches including, inter alia, Chandan Hola Block Mehrauli, Delhi. He was given the posting in that branch on 08.12.1980, on officiating basis.
3. By an order dated 17.3.1983, he was categorized in the JMG/Scale-1 instead of MMG Scale-II. He represented to the respondent on various dates between 1983-1990. During the intervening period, another employee/official of the respondent Bank working in Andhra Pradesh had also applied for a similar assignment/promotion to the post of Manager in the year 1980. He too, was granted officiating promotion in December 1980. However, he was wrongly categorized by the assignment of his seniority in the list drawn up for the purpose; he claimed that the period of officiating promotion in the post of Manager ought to have been included. He, therefore, approached the Andhra Pradesh High Court and filed a writ petition. The writ petition was allowed on 13.01.1987. The court inter alia held that the said petitioner, namely, Sai Nathan, had been subjected to discriminatory and arbitrary treatment and had been denied his rightful place in the seniority of MMS-II officers. The court noted that others who had been given officiating posting later, to Sai Nathan had been placed above him in the seniority list. In that view of the matter, the petition was allowed and suitable seniority was directed to be granted.
4. The Bank filed an intra Court appeal to the Division Bench which was rejected; it thereafter filed a Special Leave Petition to the Supreme Court. Notice was issued in those proceedings on 30.04.1987 and the matter was pending. In the meanwhile, pursuant to the petitioner's representations and presumably in line with the declaration in Sai Nathan's case, the respondent Bank reviewed its decision and issued an order on 28.02.1990. The said order reads as follows :-
"This has reference to your representation dated 24.1.90 on the above subject. We are to advise you that your representation was put up to the Competent Authority who has decided to place you in MMG Scale-II w.e.f 01.02.83 with all monetary benefits.
It has further been decided to count, with immediate effect, your period of posting from 22.5.81 to 31.1.83 for the purpose of seniority in MMG Scale-II for further promotions only.
You shall be informed about the fitment of your basic pay in MMG Scale-II by Regional Office Delhi. However, your date of seniority in MMG Scale-II for promotion purpose shall be reckoned w.e.f. 22.5.81. Further you shall continue to work at your existing place of posting till further instructions."
5. The petitioner was apparently not satisfied, however in his letter/representation dated 05.03.1990, though not directly complaining against the order of 28.2.1990 he sought for review of that order and placement of his seniority w.e.f. 10.12.1980. He followed up this representation, along with others on 07.08.91 and 18.03.92. In the later representation, he made a specific reference to the judgment of Andhra Pradesh High Court in Sai Nathan's case and also brought to the notice of the Bank, the fact that the Special Leave Petition filed by it was dismissed by the Supreme Court on 20.02.92.
6. The PNB by its letter, dated 19th November 1992 stated as follows :-
"In this context, we may inform you that the Bank has filed a review petition in Hon'ble Supreme Court of India of Shri S. Sainathan's case. Accordingly, no action can be taken on representation of any of the officers whose cases are similar to that of Sh. S. Sainathan, at this stage."
7. The petitioner made further representation to which he received a similar response on 14.12.92. The said letter of PNB reads as follows :-
"We refer to your representation dated 19th November, 1992 addressed to the Chairman and Managing Director requesting for refixation of your seniority in MMS-II on the basis of the judgment of Hon'ble Supreme Court of India in the case of Shri S. Sainathan.
In this context, please be advised that the Bank has filed a Review Petition before the Hon'ble Supreme Court of India in the case of Shri S. Sainathan. Under the circumstances, it shall not be possible for us to consider your request at this stage."
8. Eventually, the Supreme Court, by its order dated 5th March 1993, rejected the Bank's review petition. The petitioner made representations on 29.09.93, 30.09.93, 21.10.94, 26.04.95, 20.08.96 and 11.10.96 seeking PNB's response as per its assurance to review the matter after the decision in the review petition by the Supreme Court. Ultimately, the PNB, by its letter dated 30.12.96, rejected the petitioner's claim for seniority in MMGS-II w.e.f. 10.12.80. That letter reads as follows :-
"Please refer to your representation dated 16.11.96 vide which you have requested that your seniority in MMG Scale-II be taken w.e.f. 10.12.80 instead of 22.5.81 taken by erstwhile New Bank of India. You have also quoted a reference to Court case of High Court of Andhra Pradesh (NBI v. Sh. Sainathan and Ors.) in support of your aforesaid representation.
On going through the personal file and other record of the captioned matter at H.C., it is observed that the judgment in the captioned court case is not applicable in respect of you and hence you have been correctly placed in the seniority list of MMG Sale-II which please note."
9. The grounds urged in support of the petitioner are that the PNB cannot discriminate against the petitioner since he is identically situated with Sai Nathan who was the petitioner before the Andhra Pradesh High Court and who had been granted relief. It has been contended that in the relevant seniority list impugned before the Andhra Pradesh High Court, Sai Nathan was at serial No. 256 and that the petitioner at that stage itself was senior to Shri Sai Nathan. It is stated that even in the subsequent seniority position, he is better placed and that the grievance is identical, because those who were given officiating promotion to the post of Manager were treated as being senior to him in these proceedings. This, it is alleged, amounts to arbitrariness and violation of the Rule of law. It is also contended that after the matter stood finally determined and having regard to its own assurances, the PNB ought not to have gone back and taken a different position that the petitioner's case was altogether different from that of Sai Nathan case.
10. The PNB, in its return, firstly contended that the petition is barred by delay, laches and acquiescence. It is stated that the petitioner was never aggrieved by the order dated 28.02.1990; indeed that order has not been impugned in these proceeding. Such being the position, he cannot claim the benefit of the judgment in Sai Nathan's case. In Sai Nathan's case, the official concerned had approached the Court in 1984. The petitioner however chose to wait and approached the Bank only in the year 190. He has not questioned the determination of his seniority which was made as far back as in February 1990.
11. The PNB has also averred that pursuant to the Government guidelines, the issue under the parent Act, namely, Section 18 of the Banking Companies (Acquisition and Transfer of Undertaking) Act 1980, the Central Government had issued certain guideline which obliged the bank to carry out categorization of officials and assign proper seniority. Keeping those principles and also the regulations framed under the Act in mind, the seniority position of the petitioner was duly and properly given.
12. It is contended that the norms issued by the erstwhile New Bank of India, dated 19.9.79, required that a branch with a medium deposit and advance of Rs. 60 lakhs were applicable to rural and semi rural urban offices and the conditions for urban and metropolitan officer was minimum deposit of Rs. 75 lakhs; minimum aggregate deposit and advances being Rs. One crore respectively. It was averred that the petitioner, in his representation dated 14.4.83, admitted that the figure of deposit and advances in the concerned branch which he had opted for, namely, Chandan Hola, was Rs. 42 lakhs and Rs. 9 lakhs respectively. Therefore, his branch did not fulfilll the criteria laid down by the bank and the consequential, the ratio deposit in Sai Nathan's case was inapplicable. The respondents have also filed an additonal affidavit in which it has been contended that the circular inviting applications sought for preferences. Out of five preferences shown by the bank, one was Chandan Hola. He was selected to the post of Manager and as such his case for placement and fixation of seniority in MMS Scale-II could not be considered in terms of the Government guidelines. This additional affidavit again reiterates that the government guidelines requiring that Middle management Grade would include Managers of branches with medium size branches including officers as well as Regional/Area/District and like officers. If these parameteres were kept in perspective, the petitioner could not be said to have been working in ne of such branches so as to entitle him to assignment of seniority in the grade of MMS-II. It was also stated that one Shri Malwa was selected for the post. One Shri Mandoda applied for the post but when interviewed he was found suitable in May 1981 On the basis of these facts the matter was reexamined. In view of the circumstances, the petitioner was placed in MMGS-II from the date when the other employee Shri Mandoda was plaed in scale, namely, 22.5.81.
13. There are certain other averments relied upon by the respondents which disclose the pay scales of Managers at the relevant time in the bank, were Rs. 400-1110 and 500-1330 respectively.
14. It has been alleged on behalf of the bank that in his representations, the petitioner himself had sought for assignment of 03.12.82 as the relevant date and he cannot therefore claim any other date; he is estopped from doing so in these proceedings.
15. Ms. Alpana Poddar, appearing for the petitioner contended that the respondents' action denying due seniority to the petitioner is arbitrary. At relevant and material time, after the judgment of Sai Nathan's case, the respondent had held out that his case and the case of other officials would be considered and reviewed in line with the order of the Supreme Court passed in review petition. Once the review petition was dismissed, the respondents were duty bound to consider and extend the same relief as granted in Sai Nathan's case. In denying it, the respondent bank has acted in arbitrary manner. She relied upon judgment of the Supreme Court in Amrit Lal Berry v. Coll. of Central Excise, Central Revenue, and Ors. AIR 1975 SC 590 to the effect that as an employee a State or public agency is duty bound in terms of Articles 14 and 16 of the Constitution of India to extend the same relief to persons who are situated similarly or identically. Para 24 of the said judgment was pressed into service. It reads as follows:-
"We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law in his favor, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to the Court."
16. Learned counsel has also relied upon the judgment of a Division Bench in Union of India and Ors. v. Kulwant Singh and Ors. 2002 (65) DRJ 28 much to the same effect. The Court had held as follows :-
"The respondents' plea was based on the fact that the similarly situated persons who figured in the same seniority list and were even senior to the applicants before the Lucknow Bench cannot be treated differently by the respondent, particularly when the Supreme Court had affirmed the decision of the Lucknow Bench and the principles laid down therein. We are satisfied that there is no merit in the plea of the respondent and the Central Administrative Tribunal was entirely justified in granting the benefit entitling them to have their pay refixed in the grade of Material Checkers and Clerk as was done in the case of the applicants before the Lucknow Bench irrespective of the fact that whether the Lucknow Bench order was universally applicable, those figuring in the same seniority list as the applicants and those other similar situated as the applicants before the Lucknow Bench are entitled to similar benefits particularly when the Hon'ble Supreme Court had upheld the order of the Lucknow Bench. We are satisfied that the respondents' plea deserved to be accepted and the petitioner had unduly delayed the implementation of the benefits granted by the Lucknow Bench Central Administrative Tribunal for no valid reason. Accordingly there is no merit in the writ petition."
17. Learned counsel for the petitioner also submitted that there is no rationale for granting the seniority only w.e.f. 22.5.81 when admittedly the petitioner had been working on officiating basis in the concerned branch on 10.12.80, when it was inaugurated. She also placed reliance upon the judgment of the Calcutta High Court in C.O. No. 1793 of 1996 and connected cases, namely, Pawan Kumar Sharma v. UOI and Ors. Decided on 04.04.2002. The Court noticed there judgment in Sai Nathan's case. It challenged an order/letter dated 09.11.92 which had declined the consideration of the claim for representation in seniority on the ground that a review petition was pending. The Court noticed in all other particulars, benefits were similar to Sai Nathan's case. The Court held as follows :-
"Had the case been different, the respondent authority could have rejected the representation on merits without referring to the review petition.
It is well settled principle of law that a similarly circumstance person is entitled to such relief even without approaching the Court of law. Hence the contention of the respondent authority in their affidavit-in-opposition to the extent that the writ petitioner could have intervened in the matter of Sainathan before the Supreme court, is not tenable."
18. Learned counsel also submitted that a similar view has been taken by the Rajasthan High Court in a writ proceeding which was decided on 9th October 1992 (B.N. Aggarwal v. New Bank of India). There too, the Court had issued identical directions.
19. Mr. V.K. Rao, learned counsel appearing for the bank reiterated the contentions taken in the counter affidavit. He urged that these proceedings were initiated in the year 1998. He submitted that the passing of the order of 28.2.1990, a substantial portion of the petitioner's grievance had been redressed. If, he had any other grievance, he ought to have come forward with it and challenged the view taken by the PNB, at the earliest. He chose to await and approach the Court much later. It was submited in matters of seniority and promotion, the settled rule is that the Court ought not to interfere since vested rights of other employees would be affected if the Court interdicts the executive or administrative authority.
20. Learned counsel also submitted that the stand taken by the petitioner himself was for seniority in the year 1982. In view of that and the fact that he did not chose to challenge the order dated 28.2.90, he cannot, now. after a long passage of time, approach the Court and claimed to be aggrieved.
21. On the merits, it is submitted that the case of the petitioner stands on a different footing from that of Sai Nathan's case. The petitioner, it is claimed, was assigned a branch office which could not be categorized as either large or of medium scale in terms of the Government guidelines of the erstwhile New Bank of India issued on 19.7.79. It is therefore submitted that there is neither any arbitrariness nor illegality in the assignment of the petitioner's seniority in MMS-II w.e.f. 28.2.90. M. Rao also relied upon letter dated 14.4.83 written by the petitioner which itself discloses the figures available as far as the branch was concerned.
22. The judgment in Sai Nathan's case dealt with a situation where, the official was aggrieved by the assignment of his seniority in MMS-II. There is no dispute that after 28.2.90 i.e. when the respondent Bank reviewed the petitioner's seniority position, it was of the opinion that the petitioner's case could possibly be covered, by that judgment; nevertheless it asked him to await the outcome of the review petition.. This, in my opinion has a two fold effect. A model employee is not expected thrush to Court and ventilate his grievance even though his employer holds out an assurance that a review or re-consideration of his grievance would be undertaken on a later date. That appears to have happened in these cases. The petitioner awaited the outcome of the review proceedings pending in the Supreme Court; they culminated in the year 1993. Thereafter, he made representations to the respondents like in the other cases as in the case of petitioner's in Kolkata etc. Eventually, on 30th December 1996, his representations were rejected. No reasons for this decision were ever assigned. The PNB merely took a view that his case was not similar to Sai Nathan.
23. During the intervening period, the bank hedld out an assurance that the cases of not merely the petitioner but other officials would be taken up for consideration after the review proceedings culminated. There would have been some merit in the contention of the respondent that the petitioner has approached this Court belatedly. But the holding out of a possibility, of review, by the bank makes all the difference. In the light of these and the fact that Rule was issued in these proceedings, I am of the view that the issue of delay and laches does not come in the way of the consideration of the petitioner's case on merits.
24. The petitioner's case for seniority w.e.f. 10.12.80 has been essentially turned down on because he did not apply for the post of Manager of a branch which was either large or medium scale in terms of the guidelines of the Government and the circular of the New Bank of India dated 19.9.79. The letter dated 8.11.80 in pursuance to which the petitioner and others were called upon to exercise their option is on record. It however, does not disclose the principles applicable for assignment of the branch. This is an important circumstance since it has been put as a factor against the petitioner's claim for seniority. In the absence of any information as to the assignment of the branch and the likelihood of its effect, in the option as well as chances of seniority and promotion, I am of the view that the respondent bank cannot now said that he had opted for a smaller branch and is therefore disentitled to the benefit of seniority from the date he officiated as Manager. The petitioner had not opted for the branch at Chandal Hola as the first choice; that was the third choice. It would therefore be apparent that the assignment of posting was purely based upon the exigencies of the respondent bank's requirements and exclusively not on the consideration of his preference for Chandal Hola.
25. As far as the issue with regard to the date of 2.2.81 is concerned, the explanation given is that another employee had opted for a branch at Khandwa and upon that officer eventually not reporting, another official, namely, Shri Mandodi had been given that posting and the petitioner was given seniority from that date. In my view this reasoning is specious. If the respondents were of the view that the petitioner was not entitled to be assignment of seniority at all and had to be given that benefit w.e.f. December 1982 or in 1983 (as was originally given), the assignment of seniority or another employee's posting (upon his preference and further contingency of his not having reported to the branch) which led to the petitioners' posting, somewhere also, and of another official, can hardly constitute a reason for determining the seniority of the petitioner. Therefore, the assignment date, namely, 22.5.81 is arbitrary, I am of the view that no justifiable reason has been disclosed by the respondent bank as to why the petitioner should not be shown in the seniority list w.e.f 10.12.80 when he actually started officiating as Manager in MMS-II in the concerned branch.
26. Learned counsel for the respondent had endeavored to submit that the judgment of the Andhra Pradesh High Court is also inapplicable on account of a subsequent judgment of the Supreme Court dated 28.1.98 in CWP 4223 reported as K.B. Sharma v. UOI.
Learned counsel took me through the said judgment. A consideration of the judgment would show that the Court was primarily concerned with the challenge to the judgment and reasoning of the Division Bench of the Punjab and Haryana High Court, which had upheld regulations framed under the 1980 Act, that effected fitment, categorized employees and also sp out the policies for fixing seniority of officials. In the course of the judgment, the Supreme Court had occasion to deal with Sai nathan's case an the Court held as follows :-
"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 the determination made there under by the High Court was not interfered with by this Court inasmuch as the Special Leave Petition was dismissed in limini."
27. It would be apparent that the Supreme Court was concerned only with the issue of legality and correctness of the regulations; the inter se seniority position of various officers determined in accordance with the regulations was however was not the primary challenge. The Court itself clearly held that Sai Nathan's case concerned inter se seniority of officials and was not concerned with the regulations. In that view, I am of the opinion that the judgment in that case would not come in the way of ranting relief in these proceedings.
28. Learned counsel for the respondent had also endeavored to press on the point that even the rejection order of 30.12.1996 was not impugned by the petitioner in these proceedings. If in fact that constituted cause of action , even that ought to be as ailed; not having done so, the petitioner can not claim that he was arbitrarily dealt with eight years earlier. I am afraid that it is not open to bank to raise this plea, much less at this stage of proceedings. The materials on record show that the respondent found some justification in the petitioner's claim for parity with Sai Nathan's case and granted him partial relief in 1990. However, the extent of that relief was not same as in the case of Sai Nathan. Therefore, he kept on representing. It was open to the respondent to immediately say that the petitioner's case was not at par; nevertheless, they held out and represented to him that his case would be reconsidered/determined after the conclusion of the proceedings in the review petition. One the review proceedings were over, the respondents again represented in the matter and they finally took a decision in December 1996 without disclosing any reasons. In these circumstances the defense that the petitioner should have challenged the reject on order is also a hyper technicality.
29. The imperatives of Article 14 and 16 of the Constitution are that a State or public authority or agency is duty bound to be fair, non-discriminatory in its approach. This applies across the board even at the case of public employment. The approach adopted by the respondent in this case unfortunately has been opposite and for the treatment of its employees. It appears to have compelled the various employees in different branches to approach the court. As observed in Munna Lall's Case, an employee or public official can rightfully accept that if a principle is laid down by the courts that would be uniformely applied. That has not happened as is evident in these proceedings. In the circumstances, I am of the view that the stand of the respondent is without any justification. The petitioner is entitled to seniority with effect from the date he commenced officiating in the post of MMS-1 as Manager namely on 10-12-88.
30. The question of consequential relief has to be considered at this stage. Admittedly, the petitioner approached this Court in the year 1998. Although, as explained earlier, there can be no question of rejecting his claim on the ground of laches, nevertheless, the intervening period, which has lapsed can not also be completely lost sight of. Therefore, I am of the view that while directing the respondents to grant him the appropriate seniority and place him in the list on the basis of his being entitle to MMS-II w.e.f. 10-12-80, the petitioner should be given consequential benefit of notional pay fixation for the intervening period also notional promotion, for the intervening period up to the date he filed the petition. The financial benefits accruing on account of such notional fixation of pay scales/promotion shall be admissible only w.e.f. 1-9-98 in accordance with the rule applicable in the respondent. The respondent shall comply with these directions with in three months from today. The writ petition is accordingly partly allowed to the extent indicated above. Rule made absolute in the above terms.