Haridas Verma vs C/M, District Cooperative Bank ...
2017 Latest Caselaw 3964 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 37
 

 
Case :- WRIT - A No. - 66062 of 2008
 

 
Petitioner :- Haridas Verma
 
Respondent :- C/M, District Cooperative Bank Ltd. & Another
 
Counsel for Petitioner :- D.K. Tripathi,Dharmendra Kumar Tripathi
 
Counsel for Respondent :- Sujeet Kr. Rai,S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

Heard learned counsel for the petitioner.

This writ petition has been filed praying for quashing of the order dated 17th November, 2008 which is annexed as Annexure No. 7 to the writ petition. The order categorically recites that since there were no posts available for promotion to the post of Assistant Branch Manager, Grade-II under the promotion quota against which the petitioner was continuing, it was not possible to continue the petitioner on the said post and the order of promotion dated 4th January, 1993 was being cancelled forthwith. The fact is that this cancellation order has come after 15 years which is undisputed.

Learned counsel for the petitioner submits that this writ petition was filed assailing the said order and an interim order was passed on 19th December, 2008. 

However, the writ petition was dismissed in default on 19.03.2012 and was restored to its original number on 15.10.2015. The petition was again dismissed in default on 19th January, 2017 and was restored on 26th April, 2017.

It is in this background that we had heard the petitioner on the earlier occasion and Sri D.K. Tripathi had sought an adjournment on the query raised by us about the status of the availability of the vacancies as on the date of promotion of the petitioner. Sri D.K. Tripathi has filed a supplementary affidavit today stating therein that the petitioner was not only promoted but he was given all consequential benefits thereafter, and these letters have not been disputed by the respondents. 

The contention is that the impugned order of cancellation is in violation of principles of natural justice and even otherwise it cannot be said that the vacancies did not exist. The respondents ought to have taken action earlier and there is no justification to cancel the promotion after 15 years. 

A counter affidavit has been filed on behalf of the respondents and alongwith the counter affidavit the respondents have come up with a case that the approval of promotion apart from the absence of vacancy was also manipulated which is reflected in the letter dated 3rd February, 2009. A copy whereof is annexed as Annexure No. 2 to the Counter Affidavit. The said letter indicates that there was no such approval and any order produced in relation to the petitioner for approving his promotion by the Institutional Service Board is a manipulated document. A rejoinder affidavit has been filed to the same denying the aforesaid allegations. The order under which the petitioner came to be retired on his attaining the age of superannuation in June, 2015 has also been placed on record.

Learned counsel for the petitioner, therefore, submits that a combined effect of all the documents filed alongwith the supplementary affidavit as well as the writ petition and the rejoinder affidavit would establish that there is no element of any manipulation or any absence of availability of post so as to attribute any malafide on the part of the petitioner in getting himself promoted. It is further submitted that the petitioner was nowhere concerned with the status of the vacancies and now after retirement the respondents ought to explain the status of the vacancies against which such promotions were made. It is therefore, submitted that now the petitioner cannot be non-suited and that the writ petition deserves to be allowed with all consequential benefits.

Learned counsel for the respondents has invited the attention of the Court to the contents of the counter affidavit and also the facts stated in the writ petition to urge that in the absence of any fact establishing the status of vacancies against which promotion is being claimed, the petitioner cannot be extended any such benefit coupled with the fact of the manipulation of the document of approval.

At the very outset, we may put on record that the Court is also surprised at the manner in which the respondents had proceeded to cancel the promotion after 15 years. Not only this, the allegation of manipulation in the approval order had surfaced in 2009. It is not understood as to how and in what manner was this fact withheld for 15 years and ultimately the promotion order was cancelled in the year 2008. The respondent-bank and its officials whosoever they are were equally responsible for bringing about this situation. The fact remains that the status of vacancy for the promotion quota was non-existent.

Learned counsel for the petitioner urged that as per the letter dated 15th July, 1992, a copy whereof is annexed as Annexure No. 2 to the writ petition, the intimation and requisition of the vacancies as indicated was of 16 posts out of which 8 posts were occupied and 8 posts were vacant. There is no dispute with regard to the vacant status of the said posts being raised by the petitioner but there is no explanation as to whether the 8 posts which were vacant in 1992 were of the promotion category. No material has been brought on record either in the writ petition or in the supplementary affidavit so as to establish that when the petitioner was promoted in the year 1993 any vacancy of the promotion quota was available when there is a clear denial to that effect in the impugned order itself. As a matter of fact, the petitioner in the writ petition had not even questioned this status as indicated in the impugned order. It is now as of  today a supplementary affidavit has been filed which also does not contain any such requisite information for which the argument of Sri D.K. Tripathi is that the petitioner having retired from service is not in a position to give any details. The fact, therefore, which emerges from discussion hereinabove is clearly to the effect that the petitioner has failed to establish the existence of the vacancies against which the petitioner was promoted under the promotion quota. In the absence of any such material if the conclusion drawn in the impugned order is inevitable, then any allegation of violation of principles of natural justice becomes redundant inasmuch as no effort has been made by the petitioner to bring on record any such material even when he was in service, as this petition was filed in the year 2008.

It is also worth noting that the Annexure No. 2 to the counter affidavit which is dated 3rd February, 2009 also reflects upon the manipulation that had occurred and was the basis of the incorrect issuance of the promotion order on which the petitioner is placing reliance.The same also could not be successfully rebutted in the rejoinder or the supplementary affidavit.

Learned counsel for the petitioner has cited the decision in the case of Jagan Narain Vs Food Corporation of India 2010 (4) SCC 558 which is in relation to withholding of promotion on account of a minor penalty proceedings whereof went on for 15 years. The said ratio does not apply on the facts of the present case. Similar is the status of other judgment in the case of Union of India Vs Narendra Singh 2008 (2) SCC 750.

Consequently, for all the aforesaid reasons there is no merit in the petition, it fails and is hereby dismissed.

Order Date :- 4.9.2017

S.Chaurasia