K.C.Mehta vs Bank Of India
2016 Latest Caselaw 6372 Bom

    PVR                                  1                                      wp1433-02.doc


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                   
                               WRIT PETITION NO.1433 OF 2002




                                                           
    Mr.K.C.Mehta                                     )
    Bank of India, Bank of India Building,           )
    6th floor, Plot No.11, Sector 11,                )
    C.B.D.Belapur, Opp.N.M.M.C.,                     )




                                                          
    Navi Mumbai 400 614.                             )...Petitioner

            vs.




                                             
    Bank of India.                                   )
    through Chairman & Managing Director
                                    ig               )
    Express Towers, Nariman Point                    )
    Mumbai-400021.                                   )...Respondent
                                  
                                        ---
    Mr.Makrand Kale i/b. M. P. Vashi & Associates, for the Petitioner.

    Mr.R.S.Pai and Mr.Anant Pai and Mr.A.K.Gopal i/b. Naresh Mehta & Co., 
       

    for the Respondent.
                                     ----
    



                                 CORAM :  ANOOP V. MOHTA & 
                                            G.S. KULKARNI, JJ.

                          Reserved on  :             19th OCTOBER, 2016.





                       Pronounced on  :              26th OCTOBER,2016
                                     ----
    JUDGMENT: (Per G.S.Kulkarni, J.)

1. By this Writ Petition under Article 226 of the Constitution of

India, the Petitioner who was in the services of the Respondent-Bank as a

Deputy General Manager and who has retired during the pendency of this

Petition on 31 January 2004, has approached this Court making the

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following prayers:-

"(a) This Hon'ble Court be pleased to hold and declare that the

Respondent have acted arbitrarily and discriminatorily against the Petitioner in denying him the promotion to the post of General

Manager and thus have acted contrary to the existing policy and practice and hence violated the constitutional rights under Article 14 and 21 of the Constitution of India by not filling the seven

vacancy during the promotion process of July,1998 and further in not exhausting the list of selected candidates before the next promotion process which was held within 4 months of the earlier

process.

(b) This Hon'ble Court be pleased to issue a writ of mandamus

or a writ in the nature of mandamus directing the Petitioner to promote to the post of General Manager with effect from the date of

availability of seventh vacancy i.e. 9.9.1998.

(c) Pending the hearing and final disposal of the petition, direct the Respondent to promote to the Petitioner forthwith from the post of Dy.General Manager to General Manager retrospectively i.e. from

the date on which the seventh vacancy became available.

(c-1) That pending the hearing and final disposal of this petition this Honourable Court be pleased to direct the Respondent to leave one post of General Manager free and/or unfilled for the Petitioner

at the next promotion process."

2. The case of the Petitioner as seen from the averments in the

petition, is that, the Petitioner was eligible for the promotional post of

General Manager. In July,1998 the promotional committee called as

Director's Promotion Committee (DPC) sat for selection of General

Managers in respect of seven vacancies. On 21 July 1998 the Petitioner

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was called for interview with some other candidates. The DPC selected

seven candidates for promotion against seven vacancies. However, the

Respondent declared names of only four selected candidates to fill up four

vacancies against seven vacancies available. The Petitioner was selected

by the DPC and was placed at Sr.No.7 in the list of selected candidates. It

is the Petitioner's contention that despite of existence of seven vacancies

and seven selected candidates, the Respondent declared four names for

promotion on 21 July 1998. Subsequently, within a period of ten days,

two more candidates were promoted which clearly shows that the selected

candidates were kept in the list as wait listed candidates, who were to be

promoted as and when the next vacancy became available. The Petitioner

has averred that the seventh vacancy became clear on 9 September 1998,

within a period of 39 days, but the Petitioner was not promoted against it

and the Petitioner was the only remaining candidate in the list of

successful / selected candidates. The Respondent ignored the Petitioner

when the last vacancy out of seven vacancies was available on 9

September 1998. However, the Respondent instead of granting promotion

to the Petitioner, arbitrarily decided to hold fresh promotion process by

merely adding three more vacancies which were vacant within a span of

about month. The action of the Respondent is clearly malafide. It is the

contention of the Petitioner that in addition to the above, the candidates

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who failed and proved unsuccessful earlier were called and the eligibility

criteria for the candidates to be called for the next promotion process was

relaxed from three years to less than three years. This was done in the

case of Mr.R.R.Parthsarathy, Ms.Viloo Cama and Mr.F.Martis who were

eventually selected for promotion and who were promoted in the

promotion process which was concluded on 16 November 1998. A

perusal of the prayers as noted above show that the Petitioner though has

challenged denial of promotion to him, the Petitioner has not challenged

promotion granted to other officers. Neither those persons are made

parties to the present petition.

3. The Respondent has appeared and filed a reply affidavit of

Mr.Dileep Ratiram Harnagle, Assistant General Manager (Personnel &

Industrial Relations). The Respondent has averred that the Petitioner is

seeking promotion to the post of General Manager in the category of

Scale-VII on the basis of an expired select list prepared by the DPC on 21

July 1998 and thus, the Petition is wholly misconceived. It is contended

that the Petitioner has no right of promotion under the Promotion policy

applicable to him. It is stated that the Petitioner candidature was

considered by the DPC in the selection process held on 21 July 1998 and

also the second promotion process held on 3 November 1998. As the

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promotions were made to the post of General Manager in the category of

Scale-VII from the candidates in the select list in the order of their rank in

the select list as per their merit to the posts available, the Petitioner could

not be promoted as his name is at the bottom of the select list. The

Respondent has categorically averred that the whole foundation of the

Petitioner's case what that there were seven vacancies in existence on 21

July 1998. The Respondent has stated that at the time of selection process

held on 21 July 1998, there were only four vacancies and these vacancies

were filled up from the select list in the order of their merit and thus the

Petitioner could not be appointed. It is thus contended that the Petitioner

has no cause of action for filing of this petition. In dealing with paragraph

(5) of the Petition, the Respondents have denied that in July,1998 the DPC

was convened for filling up seven vacancies of General Manager. It is

stated that the DPC was convened for filling up four vacancies of General

Manager. Further in paragraph 13 of the reply affidavit, the Respondent

has averred that the select list dated 21 July 1998 expired on 3 November

1998 when the new DPC was convened wherein the Petitioner also

participated and was interviewed. It was averred that the Petitioner

having participated in the new selection process under the DPC held on 3

November 1998, the Petitioner cannot question the appointment made on

the basis of the new select list. The Petitioner in fact neither in the DPC

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selection of July,1998 invoked clause 12 of the Promotion Policy by

making representation being aggrieved by the DPC., nor the Petitioner in

the new selection process dated 3 November 1998 questioned

appointment by availing of remedy of clause 12 of the Promotion Policy.

It is therefore, contended that the Writ Petition deserves to be rejected.

4. We have heard the learned Counsel for the parties and with

their assistance we have perused the pleadings and the documents as

placed on record. The learned Counsel for the Petitioner in support of the

prayers in the Writ Petition contends that the Petitioner is entitled for the

prayers inasmuch as the Respondent has not followed the Rules in vogue.

The learned Counsel submits that at the relevant time in July 1998 as

sated in the Petition, there were seven vacancies and the Petitioner had a

legitimate right for promotion as his name was placed in the select list.

The learned Counsel submits that the action on the part of the Respondent

is malafide as averred in the petition. The learned Counsel for the

Petitioner in support of his submission has placed reliance on Regulation

9.3 and Regulation 17 of the Bank of India (Officers') Service

Regulations,1979 (for short "the 1979 Regulations") which read thus:-

"9.3. Promotions for filling up vacancies will be, as far as possible, in one lot every year. However, the Competent Authority, as specified in the Policy, may promote a lesser number of Officers, compared to the declared number of vacancies, in its sole

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discretion."

"17. General:

....... ......

(iii) The Promotion process will be conducted every year, subject

to the availability of vacancies. The Officers, who had failed to get promotion in the previous promotion process in terms of (ii) above, will also be eligible to participate, in the subsequent processes. .... .... ....

(vi) Filling up of Vacancies in SMG Scale V and above, arising on account of retirement, resignation, death, voluntary retirement etc.

A waitlist of candidates for promotion to Scale V and above will be prepared and promotions in respective scales will be released as and

when vacancies arise on account of expected retirements/elevation to higher scales, if any. In addition to the said waitlist, the

Chairman and Managing Director is authorized to release the promotion of candidates appeared for promotion but not selected in the main list or waitlist but standing immediately after the name of

the last candidate in the waitlist, so as to fill the vacancies, if any, arising on account of resignation, death, voluntary retirement,

superannuation etc. who was/were promoted in the main list/wait list of the concerned promotion process.

... ... ....

(xv) An officer who applies for promotion and gets selected, cannot refuse promotion."

It is therefore, submitted that on the basis of the above rules that the

Petitioner being in the select list of July 1998 at Serial No.7, had become

entitled for promotion and the such denial was arbitrary and illegal.

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5. On the other hand, the learned Counsel for the Respondent

has supported the decision by referring to the affidavit in reply to contend

that the contention of the Petitioner that there were seven vacancies in

July 1998 was itself incorrect and there were only four vacancies. He

submits that the Petitioner having been participated in the subsequent

selection process dated 9 September 1998, dis-entitles the Petitioner to

any relief. The learned Counsel for the Respondent would thus contend

that neither there were seven vacancies as alleged by the Petitioner nor

the select list was kept in operation and same had lapsed when the next

selection was undertaken which was the provision in the relevant rules.

It is submitted that the reliance on the 1979 Regulations on behalf of the

Petitioner is wholly misconceived inasmuch as at the relevant time, 1993's

Regulations were in vogue. Reliance is placed on clause 13(viii) of the

1993 Regulations which reads thus:-

"13. General

... .... ...

(vii) Waiting list for filling up vacancies arising out of non- acceptance of promotion.

The vacancies arising out of non-acceptance of promotion by candidates under seniority channel and merit channel would be

filled in as follows:-

(a) Seniority Channel:-

By promotion of the next eligible candidates from the interse seniority list in the order of their standing in the said list.

(b) Merit channel:-

By promotion of the next candidates in the order of their standing in the merit list below the cut off point, provided

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such candidates has scored not less than 50% of total marks.

The waiting list as stated in (a) and (b) above will be valid for a period of 1 year from the date of declaration of results or the date of initiating the next process of promotion which-ever is earlier".

(emphasis supplied)

As regards the Petitioner's contention that the Petitioner ought to have

been promoted in the promotional exercise undertaken in

September,1998, learned counsel for the Respondent submits that the

Petioners' ranking was below the other candidates to came to be

appointed. The Petitioner is therefore not right in making a claim that he

ought to have been promoted in this promotion exercise. It is, therefore,

submitted that the Petitioner is not entitled to any reliefs.

6. We have heard the learned Counsel for the parties and with

their assistance have gone through the pleadings and the documents.

7. At the outset we may note that the Petitioner's assertion that

there were seven vacancies when the promotion exercise was undertaken

in July,1998, itself is without basis. We asked the learned Counsel for the

Petitioner as to on what basis the Petitioner has averred in the Petition

that there were seven vacancies in July 1998, the learned Counsel for the

Petitioner was unable to point out any material to show that there were

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seven vacancies. A perusal of the affidavit filed on behalf of the

Respondent makes it clear that there were only four vacancies when DPC

undertook promotional exercise on 21 July 1998 and for which the select

list of seven was prepared. In view of the fact that only four vacancies

were available and the Petitioner was not falling within four vacancies and

his position in the select list was at Sr.No.7, the Petitioner could not have

been granted promotion. The Respondent has made categorical

averments in regard to this position of four vacancies in paragraphs 8 and

9 of the reply which read thus:-

"8. With reference to paragraph 5 of the Petition, I deny that in

July 1998 the DPC was convened for filling up 7 vacancies of General Manager. I reiterate that the said DPC was convened only for filling up 4 vacancies of General Managers. I say that the DPC was convened on 21st July 1998 to consider promotion of Officers from top Executive Grade Scale-VI to Scale VII to fill up 4 vacancies.

On 21st July 1998, DPC interviewed about 10 Officers and prepared a select list consisting of 4 officers in Top Executive in Scale-VI. I

therefore deny that on 21 st July 1998 when DPC was convened there were 7 vacancies, as alleged. I reiterate that as on 21 st July 1998 there were only 4 vacancies of General Managers. The said DPC effected promotion of the first 4 candidates from the select list dated 21st July 1998. It is correct to say that the Petitioner was at

Sr.No.7 in the said select list.

9. With reference to paragraph 6 of the Petition, I deny that there were 7 vacancies on 21st July 1998, as alleged. I say that two additional vacancies for General Managers arose on 22 nd July 1998 and the Board of Directors approved filling up of 2 vacancies of

General Managers, which were filled from the waitlist dated21st July 1998 in the order of their serial number. Accordingly, Shri.M.D.Choudhary and Shri.K.H.Vora came to be appointed as General Managers with effect from 1.8.1998."

8. In paragraph 11 of the affidavit, the Respondent has stated

that another DPC convened on 3 November 1998 which prepared a select

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list of the eligible officers in Scale VI and same was also approved by the

Board of Directors in the meeting held on 16 November 1998. In this

DPC, the Petitioner was also interviewed by the DPC on 3 November 1998

alongwith the other eligible candidates. It is stated that the norms as

permissible under the Rules were applied and in this DPC the Petitioner's

name was appearing in the select list dated 3 November 1998 below the

names of the top executives who were appointed in Scale VII. It is stated

that participation of the Petitioner in the subsequent DPC on 3 November

1998 itself dis-entitled the Petitioner to claim any relief in respect of DPC

of July,1998 as prayed in prayer clause (a). It is stated that even in

respect of DPC held on 3 November 1998 the Petitioner has not made any

representation under Clause 12 of the Promotion Policy. The Petitioner,

therefore, cannot have any grievance in respect of DPC dated 3 November

1998. What is pertinent is that in the rejoinder affidavit filed by the

Petitioner these averments which go to the root of the matter, that there

were only four vacancies in respect of DPC of July,1998 and that in the

DPC of September,1998 the Respondent had undertaken promotion

exercise as per the ranking in the select list prepared by the DPC, are not

denied by the Petitioner.

9. In view of the above clear facts we are not persuaded to

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accept the Petitioner's case that the Petitioner is in any manner became

entitled to reliefs as prayed for. The law in regard to the promotion is

well settled that there is only legal right to be considered for promotion.

The scope of judicial review is only in regard to the decision making

process, in making promotion. In the present case the Respondent-Bank

had properly adhered to the Rules and Regulations. 1993's Rules in

respect of waiting list as relied upon on behalf of the Respondent are also

clear inasmuch as the waiting list as provided in Rule 13(viii) will be valid

for a period of one year from the date of declaration of result or the date

of initiating the next process of promotion whichever is earlier. The

Petitioner therefore would not be correct in contending that July,1998's

waiting list ought to have been given effect to. More particularly the

Petitioner had participated in the selection process of DPC of 9 September

1998, however, as per the ranking and for the reasons which are set out,

the Petitioner could not succeed in the promotional exercise. We also

cannot be oblivious that the Petitioner immediately did not make any

representation by invoking Clause 12 of the Promotion Policy, but for the

first time on 28 August 2001 almost about three years after the

promotional exercise of July,1998 and September,1998 was complete,

submitted a representation. In any case, the Petitioner is now retired

during the pendency of this Petition. We are not satisfied with the case of

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the Petitioner in regard to the basic prayers. We have, therefore,

disallowed any amendment of this Petition, sought to be made by a

Chamber Summons (being moved after about 14 years of the filing of this

Writ petition), so as to make additional prayer in respect of difference of

emolument on the ground that the Petitioner was entitled to promotional

post from 21 July 1998 till his retirement i.e. 31 January 2004.

10. In the light of the above discussions, we see no merit in the

Writ Petition. The Petition is accordingly rejected. No costs.

              (G.S.KULKARNI, J.)                   (ANOOP V. MOHTA, J.)