Om Prakash Singh vs State Of U.P. Thru Principal ...
2013 Latest Caselaw 7258 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Judgment Reserved 23.10.2013
 
Judgment Delivered on 03.12.2013
 

 
WRIT PETITION NO.954 (S/S) OF 2010
 

 
Om Prakash Singh, aged about 35 years
 
son of Sri Inchha Singh, resident of B-435, 
 
Avas Vikas Colony (Budh Vihar Colony)
 
Delhi Road, Behind Hero Honda Showroom, 
 
Moradabad. 
 
                               Versus
 

 
1.	State of U.P. through its Principal Secretary, 
 
	Co-operative, Civil Secretariate, U.P., Lucknow.
 

 
2.	U.P. Co-operative Institutional Service Board
 
   	Sector 21/467-Indra Nagar, Lucknow. 
 

 
3. 	Moradabad District Co-operative Bank Limited,
 
    	Moradabad through its Secretary/General Manager. 
 
4. 	Committee of Management, Moradabad District 
 

 
   	Co-operative Bank Limited, Moradabad through its Chairman. 
 
5. 	Joint Registrar, Co-operative Societies, Uttar Pradesh, 
 
    	Moradabad Mandal, Moradabad. 
 

 
6. 	The District Assistant Registrar, Co-operative Societies, 
 
    	Uttar Pradesh, Moradabad. 
 

 
7.  	Sri Sugveer Singh at present posted as Anubhag Adhikari
 
	(Nirishank and Sangrah), Moradabad District Co-operative
 
	Bank Limited, Moradabad. 
 

 
8.	Shri Sheo Parsad, presently posted as Senior Branch 	Manager/Anubhag Adhikari, Branch Bilaridey, Moradabad, 
 
	District Co-operative Bank Limited, Moradabad. 
 

 
9.	Sri Sanjay Gupta, presently posted as Senior Branch 	Manager/Anubhag Adhikari (Lekha) Moradabad District Co-	operative Bank Limited, Moradabad.   
 

 
Hon'ble Vishnu Chandra Gupta, J.

1. By means of this writ petition, the petitioner sought the following reliefs:

"(I) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 05.12.2009 passed by Secretary/General Manager, Moradabad Zila Sahkari Bank Limited Moradabad contained in Annexure No.1 to the writ petition.

(II) Issue a further writ, order or direction in the nature of mandamus commanding the opposite parties no.3 to 6 to consider the petitioner for promotion from the date when his junior opposite party no.7 has been promoted.

(III) Issue a further writ, order or direction in the nature of certiorari to struck down the Regulation 27(iii) of U.P. Co-operative Societies Employees Services Regulation, 1975 by declaring the same ultra-vires.

(IV) Issue any other writ, order or direction which may deem fit and proper in the circumstances of the case."

2. By the impugned order dated 05.12.2009 (Annexure-1 to the writ petition), the promotion of opposite party nos. 7, 8 and 9 from Class-II to Class-I in Moradabad District Co-operative Bank Limited (hereinafter referred to as 'Bank') has been made. The petitioner was not impaneled in the list of selected candidates for promotion and aggrieved by the same, he challenged the procedure of promotion in terms of Regulation 27(iii) of U.P. Co-operative Societies Employees' Service Regulations, 1975 (hereafter referred to as 'the Regulations')

3. The facts which are not in dispute between the parties are that petitioner and opposite parties no.7, 8 and 9 are serving in the Bank on Class-II posts. The gradation list of employees of Bank has been annexed with Annexure-2 to the writ petition. In this list, the petitioner has been shown at serial no.33, opposite party no.8 at serial no.12, opposite party no.9 at serial no.20 and the opposite party no.7 at serial no.35. As such, the opposite parties no.8 and 9 are senior to the petitioner but the opposite party no.7 is junior. The opposite parties no.8 and 9 were promoted in the light of the Regulations 27(iii). The amended Regulations 27(iii) is reproduced hereinbelow:

"27. Sources of recruitment- (i) .....

(ii) ......

(iii) An employee of a Co-operative Society shall not be eligible for promotion on the next higher grade or category unless he has put in continuous service for a minimum period of three years in the post held by him.

Promotion to the post under a co-operative society whether from Category II to Category I or within the various grades of Category I, shall be made on the principle of merit. For the evaluation of merit, character roll pertaining to preceding ten years, shall be considered, wherein 3 marks for excellent, 2 marks for very good and 1 mark for good shall be given for each annual character roll entry; and for bad remarks and adverse entry 3 negative marks shall be awarded and only those employees who have thus obtained minimum 18 marks or more shall be considered for promotion, in accordance with their seniority and reservation to the extent of vacant posts meant for promotion:

Provided that promotion in categories other than Category I or within different grades of Category I shall be done on the principle of seniority subject to the rejection of the unfit:

Provided further that under the provision of para (i), the employees in Category IV shall be considered for promotion in Category III only, if they have passed intermediate examination of the Board of High School and Intermediate Education or any other examination recognized by the State Government as equivalent thereto."

4. The aforesaid Regulation has been amended in the year 2004. The amended Regulations were brought to the notice of all the Co-operative Societies by letter dated 23.11.2004 (Annexure-CA-2 to the counter affidavit of opposite parties no.7, 8 and 9) and all the Societies were asked to send the requisitions for recruitment by promotion of their employees. On the same day another clarification has also been issued by opposite party no.2 (Annexure-SCA-2 to the supplementary counter affidavit filed on behalf of opposite party no.3) wherein it has been provided in paragraph 6 that promotion shall be made on the basis of merit and for preparing the merit list evaluation of character roll entries of preceding ten years shall be taken into consideration. For excellent, very good and good 3, 2 and 1 marks shall be allocated respectively and for adverse or bad entry -3 marks shall be awarded. It is also made clear in paragraph 5 that before awarding entries, the authorities shall categorized the employees on the basis of their self assessment report and pointed out the category in which the employee falls. The category shall be judged in accordance with their work, efficiency, conduct, skill and utility to the department. The entry should be recorded on factual basis and thereafter the integrity should be certified. The entry should be in accordance with Regulations 27. It is also provided that adverse entry should be communicated to concern employee. It is also provided that minimum qualify marks for promotion shall not be less than 18 marks on the basis of evaluation of character roll. In the clarification issued, the most important change which has been made for allocating the marks is that the categories were divided into five which are Utkristh (Excellent), (Ati Uttam) Very Good, (Uttam) Good, Achchha (Not Bad) and Kharab (Poor or Bad). It is also provided in paragraph 6 that for category Achchha (Not Bad) no mark should be allocated while evaluating the merit of the employee.

5. On the basis of these guidelines, the requisition asked for was submitted by the Management of the Bank to U.P. Co-operative Institutional Service Board (hereinafter referred to as 'Board') of the Bank. The opposite party no.2- the Board considered 37 persons of Class-II for promotion on three vacant posts of general category in Class-I. It is also not in dispute that there is a provision for granting benefit of reservation in promotions. The opposite party no.2, Board prepared a merit list of all 37 persons which has been enclosed as Annexure-SCA-1 to the Supplementary Counter Affidavit filed on behalf of opposite party no.3.

6. A perusal of merit list, it appears that Sanjay Gupta-opposite party no.9 obtained 22 marks, Sheo Prasad-opposite party no.8 obtained 18 marks and Sugveer Singh-opposite party no.7 also obtained 18 marks. Rest others could not secure 18 marks on the basis of evaluation of character roll and consequently Sanjay Gupta, Shiv Prasad and Sugveer Singh, opposite parties no.7, 8 and 9 were promoted to Class-I posts.

7. It is important to mention here that though vires of Regulation 27(iii) was challenged in this writ petition but later on, it was not pressed by learned counsel for the petitioner and the writ petition to that extent was dismissed by passing a specific order to this effect on 23.10.2013.

8. The promotion of opposite parties 7, 8 and 9 were challenged mainly on three grounds, which are as under:

(A) the opposite party no.2-Board cannot create a category which is not provided in Regulation 27(iii). Carving out new category "Achchha" and the allocation of "0" marks for the said category by the Board-opposite party no.2 materially affects the merit list prepared for all 37 candidates. The clarification issued by the opposite party no.2 to this effect is contrary to the statutory provisions contained in Regulation 27(iii).

(B) the administrator appointed at the Bank have no authority to make the promotion as the same amounts to exceeding the jurisdiction vested in it because the administrator is only to carry out day to day routine work of the Bank and have no authority to incur any financial obligation upon the Bank or to take any policy decision.

(C) there were only three vacancies which are of general category so the promotion of opposite party no.8, who belongs to schedule caste category, cannot be made against the vacancy available in the general category.

9. Heard Sri H.S. Jain, learned counsel for the petitioner, Sri R.K. Chaudhary, learned counsel for the opposite parties no.7, 8 and 9, Sri Vishal Yadav, learned counsel for the opposite parties no.1, 5 and 6 and learned Standing Counsel for the State.

10. It was further submitted that the Board has ignored the decision taken by Bank against Sugveer Singh-opposite party no.7 for his misdeeds and to recover the amount of embezzlement at the time of consideration of promotion as is evident from Annexure-RA-1 to the rejoinder affidavit filed by petitioner against the counter affidavit filed by opposite party no.2.

Ground No.A

11. So far as, the Ground-A is concerned, the fact that reservation policy is applicable to the promotions in the Bank in question is not in dispute. The petitioner also did not challenge the application for reservation policy in promotions. It is also not in dispute that three vacancies of general category were available for promotion in Class-I post.

12. In the aforesaid set of facts, the claim of the petitioner is that opposite party no.7 was given benefit of reservation and posted against a vacancy of General Category which was not available to him being the member of Schedule Caste.

13. Learned counsel for the opposite parties submitted that if the suitable candidate of General Category was not available, the posts cannot kept unfilled in the interest of the department. However, It is also worth consideration that if a general candidate could not obtained the minimum mark for promotion against a vacancy of general category, the other candidate who secure the requisite marks for promotion belongs to any category other than general category, he cannot be denied promotion for not being a candidate of general category.

14. It was further submitted by learned counsel for the opposite parties that only three candidates i.e. opposite parties no.7, 8 and 9 would secure the minimum or more marks for promotion in terms of Regulation 27(iii). Therefore, all three out of 37 persons were promoted on three vacant posts which are meant for general category as no other suitable candidate was available for want of securing the minimum marks. The petitioner is also one of them who could not secure the minimum marks for promotion and as such he has no right to challenge the promotion of opposite party no.7, even though he may be junior to the petitioner as per the seniority list.

15. In the absence of challenging of the validity of Regulation 27(iii), the petitioner has no case as the petitioner has already not pressed his relief regarding the challenge of vires of Regulation 27(iii) as stated hereinabove.

16. After considering the submissions of the rival parties, I am of the view that on the basis of merit list prepared for promotion, the petitioner has no locus to challenge the promotion of either opposite party no.7 or of opposite parties nos.8 and 9 on any of the ground as he could not secure the minimum qualifying marks to be considered for promotion. Hence, it would be necessary to examine the other grounds which are before this Court for consideration.

Ground-B

17. So far as, Ground-B is concerned, it has to be seen whether by making promotion in pursuance of recommendation of Board, the administrator would incur financial liability on the Bank? As the promotion of an employee is regulated by statutory provisions contained in Regulation 27(iii), therefore, making of promotions in the cadre by adopting the due course of law is neither a policy decision nor giving promotion to those who are due for promotion amounts to incurring any financial liability on the Bank.

18. In this regard, the attention of this Court has been drawn by learned counsel for the opposite parties towards the order passed by this Court in Writ Petition No.6665 (MB) of 2007 (Smt. Nirmala Rani Mishra and others vs. State of U.P. And others) which has been communicated to the Administrative Authority of the Bank by Additional Registrar (Legal/Registration) Co-operative Societies, Lucknow (Annexure-4 to the writ petition), which reads as follows:

".... That the newly appointed administrators may not incur any financial liability and shall not take any policy decision but shall continue day to day work in the banks, subject to rule ...."

19. Here in this case sending of requisition for promotion of the employees of the Bank by the Administrator cannot be termed to a liability on the Bank. The consideration for promotion of a candidate by the Board in terms of the recommendation of the Selection Committee is a recognized course adopted in accordance with Rules and Regulations of the Bank meant for promotion. Hence, this Court is of the view that by making recommendation for promotion on the basis of selection made by the Selection Committee would not amount to incur additional financial liability or creating financial burden on the Bank, hence it cannot be said that administrator has acted beyond its power and jurisdiction or contrary to the interim direction issued by this Court in writ petition No.6665 (MB) of 2007.

Ground-C

20. Ground-C is the most important ground for consideration before this Court under which if has to be seen whether without challenging the validity of Regulation 27(iii), the list prepared by the Board for promotion could be allowed to sustain in the light of the facts of this case?

21. Regulation 27(iii) clearly indicates that Board should consider the promotion of the employees from Class-II to Class-I post by following two mandates, which are as under:

(i) the employee ought to have been considered who at least completed continuous service for the minimum period of three years for the post held by him.

(ii) while preparing the merit list for promotion, the candidature of an employee shall be considered on principal of merit and for evaluating the merit, character roll pertaining to preceding 10 years shall be considered by allocating the marks as indicated hereinbelow:

(a) 3 marks for Excellent;

(b) 2 marks for Very Good;

(c) 1 marks for Good; and

(d) -3 marks for Bad or Adverse.

22. While preparing the merit list in terms of the aforesaid guidelines, the employee, who could obtain minimum 18 marks or more, shall be considered for promotion in accordance with their seniority to the extent of vacant post.

23. It has been submitted by learned counsel for the petitioner that Regulation 27(iii) has not been adhered to while preparing the merit list for promotion. In this regard, he submits that according to Regulation 27(iii) only four categories i.e. Excellent, Very Good, Good and Bad or Adverse has to be considered but the Board while preparing the merit list added one more category, which is not available in Regulation 27(iii). This fifth category is shown as 'Achchha' for which no mark was allocated while considering the merit of an employee. Issuance of this guidelines has not been disputed by the Bank. It seems to be a category which neither falls in Excellent, Very Good, Good nor in Bad or Adverse. In true sense if an employee is awarded annual remark in his character roll by placing him in the category 'Achchha' it will be treated to be no remark for the year.

24. Learned counsel further pointed out that if this would be allowed, it will amount to override the statutory provisions contained in Regulation 27(iii). Learned counsel further submitted that the Board by issuing letter dated 23.11.2004 by way of clarification actually override the statutory provisions contained in Regulation 27(iii).

25. Learned counsel appearing for the Bank as well as for the other parties submitted that the same principle has been adopted for all 37 candidates, therefore, it will not make any difference and the merit list will not be affected.

26. In view of above, I find sufficient force in the argument advanced by learned counsel for the petitioner for the reasons that every employee has a right to be graded in accordance with Service Rules i.e. the employee should be rated by providing remark as Excellent, Very Good, Good and Bad or Adverse. So far as, Bad or Adverse entry is concerned, the negative marks are provided. It is also provided in the clarification issued by the Board that adverse entry should have been communicated to the employee concern and a clear direction has been issued that unless the adverse remark is recorded in the character roll is communicated, the same shall not be considered though it may continue in the character roll. It is also provided that in case, an adverse remark is recorded in the character roll, the whole entry should be communicated.

27. If employee is rated with new category 'Achchha' which has been discussed hereinabove, it cannot said to be an adverse entry because the same need not be communicated and the same has not been categorized as bad or adverse and if this fifth category is allowed to continue, it certainly affects the merit.

28. It could be demonstrated in the following manner. The employee P.K. Jain at Sl. No.4, M.P. Singh at Sl. No.6, Ramesh Kumar at Sl. No.8 and K.P. Singh at Sl. No.9 secure 16, 15, 14 and 14 marks respectively. P.K. Jain has not been awarded any mark for the years 2000-01 and 2008-09. Similarly M.P. Singh at Sl. No.6 was not awarded any mark for the years 2000-01, 2001-02, 2006-07 and Ramesh Kumar and K.P. Singh at Sl. Nos.8 and 9 respectively have not been awarded any marks for the years 1999-00, 2000-01, 2001-02 and 2002-03.

29. If the entry awarded as Achchha is treated to be an adverse remark, -3 marks should be deducted for each year and if Achchha is not rated as bad or adverse remark then it cannot be said to be an adverse or bad and at least the same would fall in the third category i.e. Good for which one mark ought to have been allocated.

30. It is not denied that remark Achchha was never communicated to the petitioner or any other employee. It is also not in dispute that in terms of letter dated 23.11.2004, the Board has categorically issued directions to all the Managing Directors of Co-operative Societies, Uttar Pradesh that after amendment in Regulation 27(iii), it is provided that for making promotion from category-II to category-I and for every and each year marks 3, 2, 1 and -3 should be awarded in the character roll in terms of Regulation 27(iii).

31. So these two letters issued on the same date i.e. 23.11.2004 by the Board is contradictory to each other. The clarification issued creating one more grade as 'Achchha' is against Regulation 27(iii). It is well settled proposition of law that the things should be done in the manner in which they ought to be done or not at all.

32. In view of above, if category Achchha could not be placed in adverse or bad category then certainly it will fall within the lowest category of Good which means in Hindi 'Achchha' or 'Uttam'. If one mark is added for this Achchha, certainly the candidate who is shown at Sl. Nos.4, 6, 8 and 9 may have secured 18 marks which are the minimum requirement for promotion.

33. Attention of this Court has also been drawn towards a judgment of the Apex Court rendered in Dev Dutt Vs. Union of India, (2008) 8 SCC 725 wherein the Apex Court held that every employee has a right to know under what category he was assessed by his superiors, which would enable him to improve his work in future.

34. If the employee is not satisfied with the rating awarded to him by the employer, he may raise objection about it for upgrading him on the basis of assessment made by him or by the employer.

35. The mode of recording entry in the Bank is that every employee is required to submit his self assessment and on the basis of which the officers are supposed to record entries by rating the employees as provided under Regulation 27(iii) and if the employer did not follow the Regulation, certainly it will amount to violation of the mandatory provisions for preparing the merit list for selecting the employees.

36. In view of law propounded by the Apex Court in Dev Dutt's case (supra), it is not the fancy of the employee to grant rating to his employee at their own choice but it should be based on the true and proper assessment made on the basis of record and performance of an employee. The relevant paragraphs 14, 15 and 16 are reproduced for ready reference:

"14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a `good' or `average' or `fair' entry certainly has less chances of being selected than a person having a `very good' or `outstanding' entry.

15. In most services there is a gradation of entries, which is usually as follows:

(i) Outstanding

(ii) Very Good

(iii) Good

(iv) Average

(v) Fair

(vi) Poor

A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.

16. If we hold that only `poor' entry is to be communicated, the consequences may be that persons getting `fair', `average', `good' or `very good' entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit)."

37. The Apex Court by concluding its opinion in paragraph 45 of the judgment observed as under:

"45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."

38. Having considered the rival submissions of learned counsel for the parties and the statutory provisions, this Court is of the firm view that merit list prepared by the Board on the basis of which promotions were made has not been prepared in terms of Regulation 27(iii), hence the merit list prepared cannot be allowed to sustain.

39. In view of above, the impugned order deserves to be set aside and the writ petition deserve to be allowed.

40. The opposite parties are directed to prepare fresh merit list expeditiously, say within a period of three months from today categorizing the employees only in four category i.e. Excellent, Very Good, Good and Bad or Adverse. It is also provided that the employees who has been assessed and put in category Achchha shall also be awarded one mark and be placed in the category of Good as they have not been rated by giving remark Bad or Adverse. It is also made clear that the merit list be prepared strictly in terms of Regulation 27(iii) excluding the letter dated 23.11.2004 wherein category Achchha was added as fifth category.

41. So far the plea of ignoring the alleged misdeed of opposite party no.7 and order of recovering of alleged embezzled amount are concerned, the same may be consider by Selection Committee at the time of consideration of his candidature for promotion.

42. With the aforesaid observations, the writ petition is allowed. The impugned order promoting opposite parties no.7, 8 & 9 vide order dated 5.12.2009 is quashed.

No order as to costs.

Dt: 03/12/2013

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