Anil Kumar Anand vs Unit Trust Of India And Ors.
2006 Latest Caselaw 1338 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner in this writ proceeding, impugns his alleged wrongful denial of promotion to Grade 'C' for the panel years 1994, 1995 and 1996, due to a penalty of reprimand, imposed in 1992. He seeks a direction for his promotion to Grade 'C' w.e.f January2, 1995 for the panel year 1994, with consequential benefits. Additionally, the petitioner has sought quashing of the enquiry proceeding held in the Master Plus case as well as the consequent penalty of reprimand imposed upon him.

2. The petitioner joined the respondent (hereafter 'UTI') as a direct recruit in Grade 'A' on 05.09.1986 and earned his first promotion to Grade 'B', w.e.f. 01.01.1992. He is a law graduate and holds a diploma in Labour Laws, from the Indian law Institute, Delhi. The Petitioner belongs to one of the Scheduled Castes. He claims to have been always performing his duties diligently, and with loyalty, so that the Head Office of the UTI, in the letter dated 31/10/1995 praised his work. He claims to have achieved unparalleled success, and secured repeated encomiums from his superiors and even from investors.

3. The petitioner was placed under suspension for submission of a late application under Master Plus Scheme, on 10th April 1992. He claims that receiving late applications was always a well established practice and an unspoken norm in the UTI and hundreds of such late applications were accepted by it from several employees/Officers, in all the offices. He alleges to have obtained an express written permission for such late submission, which was accepted by respondents, against acknowledgments. The petitioner was charge sheeted for acts reflecting lack of honesty and integrity; the UTI instituted an enquiry and appointed an enquiry officer. It is alleged that the enquiry proceedings were replete with gross inconsistencies. After conclusion of the enquiry, a report was submitted, holding the petitioner guilty of the charges. On this, a final order was issued on 24.11.1992, by the Chairman, imposing the penalty of 'reprimand' in terms of Rule 55(1)(a) upon the petitioner. His appeal against the penalty, was rejected by the Chairman, being also the Chairman of the Executive Committee, for legally the untenable reason that the appeal did not bring out any new points or circumstances, for reconsideration.

4. The petitioner also alleges that UTI extended his officiating period in grade 'B', covertly, in January 1993, itself for the reason that his performance for the period when he remained under suspension, was unavailable, whereas, the period of suspension of the petitioner, was treated as 'spent on duty'. The petitioner alleges discrimination in this regard, since all such benefits were extended in time, in case of other staff members, who were formally reprimanded in the same case. He alleges that loss of his seniority was deliberately contrived. He therefore seeks relief against the extension of officiation to be declared arbitrary, illegal, null and void and petitioner is entitled to his seniority in grade 'B', w.e.f . 1st January, 1992.

5. The Petitioner alleges that he was overlooked for promotion to grade 'C', due to the same penalty of reprimand which was imposed in 1992, whereas more than 70 officers, junior to him, including many unconfirmed, ineligible, delinquent officers and even the management trainees, (some of whom were still undergoing training), were considered and promoted to grade 'C', superseding him. The petitioner therefore, filed the present Petition. During pendancy of these proceedings, UTI promoted the petitioner to grade 'C' w.e.f. 10/5/1999, for the panel year 1997. However, he alleges that in its efforts to deny promotion with retrospective effect from 2/1/1995 for the panel year 1994, several misleading / false submissions were made in counter affidavit, to gain unfair advantage over the petitioner and material facts were deliberately concealed from this Court, as highlighted in the rejoinder filed in the writ Petition.

6. This Court passed an order in CM No. 1576/1999, on February 23, 1999, that ...In the meanwhile, selections, if any made shall be subject to the outcome of the Writ Petition....

which is continuing and all the selections, promotions and appointments made thereafter are subject to the outcome of the present proceedings.

7. The petitioner urged that the UTI took a stand in the counter affidavit that he was denied promotion due to the penalty of reprimand. It is further argued that the records produced on 28/2/2002 revealed that he was denied promotion on the ground that he was reprimanded in the year 1992. On the other hand, he says, it is an undisputed fact that senior officials, against whom even more severe penalties were imposed, in the same case, were promoted to higher Selection Grade posts, in the panel years 1994 and thereafter. It is also undisputed that various other officers / employees, who were reprimanded, were also granted promotions. The penalties of reprimand under Rule 55(1)(a), which, itself was unwarranted, proved extremely disastrous in case of the petitioner, than even the higher penalties imposed upon senior officials; the respondents, punished him much beyond the actual scope of penalty of reprimand. Even otherwise, postponement/stoppage of promotion is higher penalty, under Rule 55(1)(b), of Unit Trust of India (Staff) Rules, 1978.

8. It was urged that counsel for the respondents took a new stand on October 28, 2002 and wrongly claimed before this Court that the petitioner was not promoted because the post was merit-cum-selection post and there might have been other reasons for the selection committee to not recommend him. The UTI sought an opportunity to give such other reasons, but could not give any other reasons, as there were none. It was also alleged that the records were not produced on several occasions. The petitioner was therefore, entitled to reliefs, but respondents prayed for one more opportunity on 30/4/2003, which was also granted. It was urged that ultimately, when the respondents could not find any other reasons, whatsoever, for denying promotions to the petitioner, they filed an additional affidavit dated 19/5/2003 and retracted from the wrong contention raised on October 28, 2002. It was clarified that the post was a seniority-cum-merit post. The respondents further also admitted that confirmation letters, in case of many candidates, who were considered and promoted to grade 'C', were not issued. It was then contended that a false stand was taken in counter affidavit that all officers promoted to grade 'C' were confirmed officers in grade 'B'. The respondents further also admitted that in respect of the management trainees, their period of training was counted for promotion to grade 'C'.

9. On 22/5/2004, records were produced and this Court observed irregularities committed by the respondents in the matter of promotions to grade 'C'. The Respondent, in order to gain some more time , prayed for an opportunity to enable them to reconsider the matter, in view of the observations. The petitioner relies upon the observations in the order.

10. The petitioner alleges that UTI once again projected a new stand that he could not qualify in the interview, on all the occasions. He alleges that it is an undisputed fact that he had performed exceedingly well before the interview boards, on all the occasions. The UTI in their affidavit dated 24.8.2004 stated as under;

...It is reiterated that the petitioner has not been denied promotion in respect of the concerned panel years on account of the ACRs or the Special Confidential Reports. It is only because the petitioner could not secure the minimum grades prescribed by the Selection Panel for passing the interview, which is one of the methods of assessment of minimum qualifying merit....

11. It is urged that this Court has clearly observed in the orders passed on 22.5.2004 that the Promotion Policy envisages assessment of 'merit' from the performance appraisal along with a special confidential report as regard potential to be obtained. Accordingly, 'the merit', has to be assessed from the performance appraisals only, which includes the special confidential report as regards the potential of the candidates for promotion to higher grades. The performance appraisal further also takes care of each and every critical attributes and personal traits, which are required for promotion of an officer to higher grades and the officers are continuously rated for this purpose, every year. The reviewing officer then further reviews the ratings given by the reporting officers, before the performance appraisal for each year is finally forwarded to Personnel Department, for placing the same for perusal of Competent Authority.

12. The petitioner urges that submissions of respondents, prove beyond any doubt that the stand, now taken, is merely an after thought and respondents appear to be playing hide and seek to mislead this Court. The UTI, never in the last ten years, disputed his excellent performance before the Interview Panel, as claimed in repeated representations of petitioner, against such wrongful denial. It is urged that there is no rule, which prescribes any minimum merit for the interview, nor any such criteria was ever declared or informed. The Selection Panel has no power to modify the policy. Even the grades as shown, speak volumes. The record also did not reveal any minimum marks / grades to be achieved for 'the merit' and if any such records were in existence, respondents should have produced records, on 22.5.2004

13. It is stated that only after this Court observed that the records reveal that the performance of petitioner has been rated as 'good' or 'very good', for the years 1992 and onwards, which alone constitutes 'the merit', did the respondents, in their efforts to deny promotion to the petitioner from retrospective effect from January 2, 1995, make a blatant attempt to further mislead this Court, due to their bias and prejudice against him. The respondents have also admitted that 'criteria of comparative evaluation of merit', was applied while effecting promotion to grade 'C', which itself was a blatant violation of Promotion Policy and settled principles of law. Promotions were also awarded to several junior officers to grade C on the sole basis of as claimed 'overwhelmingly superior performance appraisal record' whereas, even the requisite performance of two years, was not available, in case of many juniors.

14. The respondent UTI has resisted the allegations. In its initial detailed counter affidavit, it averred that the petitioner was awarded the penalty of Reprimand on 24th November, 1992 after due conduct of enquiry proceedings against him, in which he was issued notice, the articles of charge and in which proceedings he unhesitatingly participated. He was found guilty of the misconduct of giving the application of his mother for allotment of Master plus shares after the last notified date. After conclusion of enquiry proceedings, the petitioner was given another opportunity of hearing on the quantum of penalty. The UTI proposed imposition of the penalty of stoppage of one increment in the officiating grade for two years. However after considering his representation on the quantum of penalty, the petitioner was imposed the penalty of reprimand. It was averred that in contrast, three other officers working in the higher grades and found guilty of the same misconduct (as the petitioner), were awarded more stringent penalty of withholding of increments. Thus, the petitioner was treated leniently.

15. The petitioner, it is averred, preferred a departmental appeal as per the service Rules which was dismissed on 16.6.1993. It become final and was not challenged. The UTI therefore, alleges that the petitioner cannot in the year 1999 collaterally challenge the order of penalty dated 24th November, 1992, when he is aggrieved by his non promotion to grade C.

16. The officiating period of the petitioner was extended by six months, avers the UTI, when he was working in Grade B because he was placed under suspension on 10th April, 1992 owing to the initiation of enquiry proceedings against him; the suspension continued for about 7 and half months i.e. till 24th November, 1992, when he was found guilty of misconduct. Owing to suspension, it was not possible to appraise his performance in Grade B in which he was promoted on 1st January, 1992 and where he remained suspended from 1st April, 2002 to 24th November, 2002 i.e. for more than 7 months. The officiating period in Grade B therefore, had to be extended by six months. It was also claimed that the officiating period of three other officers who were placed under suspension owing to similar misconduct as the petitioner too were extended by six months.

17. On the principal grievance sought to be raised, it was alleged that the petitioner had already been promoted to Grade C for the panel year 1997 with effect from May 10, 1999 and is aggrieved by his non promotion in the earlier panel years 1994, 1995 and 1996. It was contended, in addition on behalf of the UTI, by its counsel Shri Ramesh Keshwani, that for promotion from Grade B to C the policy envisages seniority and merit based on:

i) assessment of performance appraisal for the last 3 years along with special confidential report as regards potential to be obtained and

ii) Performance in the personal interview before a Selection Panel.

18. Counsel contended that a candidate had to achieve a minimum standard of merit in terms of Appraisal Reports and interview for consideration of promotion. It was urged, that the minimum qualifying standard in Appraisal Report is 2.01 rating out of maximum 5 in each of the appraisal reports. The key to ratings which are printed in the Appraisal Report itself read as under:

  Key to Ratings:                                            0 to 1.25
Unsatisfactory (Poor)                                      1.26 to 2.00
Barely Satisfactory (Below Standard)                       2.01 to 2.75
Satisfactory (As per Standard performance expected of 
employees from the same grade in the Department according 
to norms, targets, practices etc. generally observed in 
that Department).                                          2.76 to 3.50
Good (Above Standard)                                      3.51 to 4.25
Very Good (Far above Standard)                             4.26 to 5.00
Excellent

 

19. It was urged that an Officer has to secure minimum pass grades prescribed by the Selection Panel in the Interview before them. This stipulation of minimum pass marks is prescribed even for promotion from Workmen cadres. In terms of settlement dated 14.06.1982 (more than 2 decades back), a workman has to obtain minimum 35% marks (i.e. 7 marks out of 20) in the Interview. The candidate who gets less than Pass marks in interview irrespective of seniority will not be eligible for promotion.

20. It was submitted, on the basis of averments in the pleadings, that not a single candidate had been promoted to Grade C, who had not achieved the minimum standards prescribed both in Appraisal Ratings and in the interview grades in the personal interview before the Selection Panel. All the candidates thus found suitable were promoted retaining the same seniority.

21. It was next contended that the petitioner was not denied promotion for the panel years 1994, 1995 and 1996 because he did not achieve the minimum necessary merit in the ACRs of previous years. There is no adverse entry recorded in the performance appraisal reports of the previous years and it has been so held by the Court after perusing the record produced by UTI, in the proceedings dated 28.10.2002. The record was perused on a number of occasions by the Court and no adverse entry was found against the petitioner in the service record. The counsel stated that the petitioner could not be promoted for the panel years in question because he could not achieve the minimum standard, requisite for efficiency prescribed by the Selection Panel for performance in the personal interview as given below:

  PANEL YEARS Details               1994          1995            1996
Pass grade(s) in interview        A+,A,B+       A+,A,B+,B       A
Fail grade(s) in interview        B-,C,C-       C               C
Interview grade obtained by 
Petitioner                        C-            C               C







No. of seniors to Petitioner not 


 

22. Learned Counsel argued that not only the petitioner but also officers, senior to him had been denied promotion to grade 'C' in respect of the panel years in question for the reasons that they could not secure the qualifying gradings prescribed for the interview. The allegation that the methodology adopted was an after thought, was refuted. In the counter affidavit of the respondent at Para 2 dated July 1999, inter alia, states that 'Due weightage is given to seniority as well as to merit assessed inter alia by Performance Appraisal and Interview conducted by the Selection Panel'. This apart the letter dated 25.11.1997, which is a reply by UTI to the Ministry, relied upon by the Petitioner in fact categorically states that Performance in the Interview is also taken into consideration.

23. It was contended that the promotion policy was in vogue since last 12 years, during which nine promotion exercises from Grade B to Grade C took place. The same methodology, and criteria for promotion was followed during all the previous promotion exercises. It was further urged that reservation in promotion from Grade 'B' to Grade 'C' was introduced from 1996 and accordingly, representatives of SC/ST were provided in the Selection Panel from 1996. The Management Trainees were recruited from Premier Institutes like IIMs etc. and many had prior work experience. It was decided by the Competent Authority to include their training period too for the purpose of promotion.

24. Counsel stated that there was no challenge to the promotion policy, or the method of promotion even by several other candidates who were senior to the petitioner (except him). The same methodology and criteria of promotion were adopted for all the candidates, for promotion during the panel years in question. It is not even the petitioners' case that he has been discriminated in the sense that a different and less advantageous criteria has been applied in his case compared to what was applied for other candidates.

25. The UTI places reliance on the decision of the Supreme Court in B.V. Shivaiah v. K. Addanki Babu to the effect that the competent authority can lay down the minimum standard to be achieved, which can be by assigning marks on the basis of service record on interview. The assessment of merit by prescribing minimum marks in the interview is permissible and is wholly legal. It is also contended that the Supreme Court in State of Maharastra v. Husen 1994 Supp.(1) SCC 468 has held that:

(i) It cannot be said that prescription of minimum marks for passing the interview would always be constitutionally unsustainable and will per se make a rule unconstitutional and

(ii) The performance of the candidate both at the written test and the oral test would give the selector an integrated idea of the candidate's personality.

26. The UTI urges that the petitioner was aware of the promotion policy which categorically prescribed that the candidate had to appear for personal interview before the Selection Panel. The fact that personal interview is a prerequisite for promotion implies that no promotion can be effected unless the minimum standard prescribed by the Selection Panel for performance in the interview is achieved. The Supreme Court in B.V. Shivaiah's case had held that where candidates are aware of the procedure of promotion they cannot later turn around and challenge the method of promotion on the ground that the authorities cannot fix a minimum to be secured either in the interview or in the confidential reports.

27. It would be useful, at this stage to extract the relevant portion of this Courts order dated 22-5-2004, issued after hearing the parties:

As per the promotion policy of UTI, officers are clasified in two clusters, namely, junior management cadre comprising of grades A, B and C, and senior management cadre comprision grades D, E and F.

As per the promotion policy, for promotion in the Junior management cadre `Seniority and merit' is the criteria for effecting promotion. The promotion policy envisages assessment of merit from the performance appraisals along with a special confidential redport as regard potential to be obtained. In contradistinction, promotion policy to and within the senior management cadre is by merit alone.

Grievance of the petitioner relates to his non-promotion in the years 1994, 1995 and 1996. Pertaining to the year 1992, petitioner was suspended on 10.04.1992. Petitioner was alleged to have submitted an application by his mother to M/s. Continental Computners after the last date of receipt of application. Reason for the suspension was that the petitioner was alleged to have made an application pertaining to UTI Scheme MP-91 beyond the closing date of 31.12.1991. On 17.08.1992 a charge-sheet was served upon the petitioner. Petitioner did not dispute the facts alleged against him but stated that he had acted with the express promotion of his superior officers. Petitioner also stated that acting under the oral instructions of the officers not only he, but even other persons had susmitted applications beyond the closing date. Petitioner also took the defense that on the application form express written permission was obtained from the superior officers. defense of the petitioner was found unsatisfactory by the disciplinary authority. Enquriy officer was appointed. Enquiry officer submitted his report on 15.09.1992. Of the various articles of charge framed against the petititioner, petitioner was held guilty of only one article of charge.

Final order passed on 24.11.1992 imposed the pentaly as follows :'Shri A.K. Anand be reprimanded in terms of Rule 55(1)(a) of UTI (Staff) Rules, 1978.'

Since the petitinoer continued to be overlooked for promotion to grade C and juniors to him were being promoted, present petition was filed. Petitioner states that he belongs to a scheduled case community. Petitioner alleges discrimination againt him. Petitiner states that there wazs no occassion to even reprimand the petitioner. Petitioner alleges that various other officers who had acted likewise were not even issued a charge-seet. Petitioner futher alleges that whereas penalty of reprimand has been visited upon him in December 1992, persons against whom more servere penalties have been imposed have been promoted. Petitioner prays that mandamus be issued to the respondent to promote the petitiner w.e.f. 02.01.1995 when persons junior to the petitoner were promoted. Petitioner also prays that the enquiry report and the order of repimand be quashed.

Respondent denies the averments made by the petitioner in the writ petition.

Records pertaining to the DPC held in the year 1994, 1995 and 1996 have been produced. Before proceeding ahead in the matter I may note that petitioner has since been promoted to grade-C in the year 1999 for the panal pertaining to the year 1997.

Record of the DPC which has been produced would reveal that the DPC has placed in the order of merit, the officers, by warding them grades. The panel prepared is in order of merit as per the grades awarded by the DPC, Record of the DPC would reveal that eligible candidates were interviewed.

The select panel prepared by the DPC does not indicate as to in what manner and to what extent seniority has been considered. The record further reveals that whereas pertaining to the petitioner, for the year, 1992, it is recorded in the dosier, 'under suspension' and marks allotted to him as per ACR grading have not been shown, but pertaining to other canddiates for the year 1996 recorded whereof has been seen by me, charge-sheeted employees have been awarded marks as per ACR grading for being considered for promotion. I may note that petitioners specific averment with material particulars and names of persons who were facing disciplinary proceedings and even criminal proceedings when thy were considered for promotion, and were promoted, have not been denied by the respondent in the coutner affidavit filled.

Policy of promotion envsiages the rule of 'seniority and merit' to be followed.

Petitioner belongs to the scheduled casts community and as per government of

india instrucitons would be entitled to one step up in his grading.

I need not deal with a large number of authorities dealing witht the criteria, 'seniority-cum-merit' for purposes effecting prmotions. The latest decision of the Supreme Court on the point being B. Shivaiah and Ors. v. K.A. Babu be noted. The Supreme Court was considering a service rule which contemplated criteria for promotion being 'seniority-cum-merit'. It was held:

The criterion of 'seniority-cum-merit' in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less mertiorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit.

Observations of the Supreme Court above are clear. The said criteria would postulate that a minimum necessary merit requisite has to be specified and all those who made the said merit requisite would earn promotion in priority of seniority. It may result in less merittorious having priority. As per the observations above, in a rule of the kind above, compariative assessment cannot be resorted to. It is further to be noted that as per the decision of the Supreme Court, while assessing merit it would be open to the employer to assign marks on the basis of appraisal of performance on the basis of service record and an interview. It would also be permissible to prescribe minimum marks whichy would entitle a person to be promoted on the basis of seniority-cum-merit. In other words there cannot be a comparative merit. There has to be an assignment of minimum marks which would be the eligibility criteria for determination of merit. Thereafter, all those who achieved the merit mark would be promoted in order of seniority.

Record which has been produced reveals that the respondent has given a go by to the settled principles of law.

Petitioner who appears in person draws attention of this Court to a letter addressed by the respondent to its controlling ministry being the letter dated 25.11.1997 (Annexure P.55 at page 431 of the paper book). As per the said letter it is clear that UTI effected promotions purely on the basis of grades awarded to the interview to the candidates.

Assuming that the merit mark was 'good' or for that matter even 'very good' , record produced would reveal that the petitioner has been rated with 'good' for the years 1992 and owards. Belonging to the scheduled cast community petitioner would be entitled to one step up. Petitioner would, therefore, be graded vis-a- viz the general category candidates as 'very good' or 'excellent'.

Be that as it may, record which has been produced shows that there is a complete violation of the promotion policy. Respondent has proceeded to effect empanelment, prima-facie, on the basis of performance at the interview. Even assuming that promotion has been effected while considering the ACRs, record does not reveal that the respondent had prescribed any minimum mark to be achieved in respect of the merit. The principle of law laid down in the decision of the Supreme Court noted above has been ignored.

Two things stare one in they fact. Firstly, a complete negation of the promotion policy. Secondly, general category candidates who were facing disciplinary proceedings and even criminal proceedings have not only been considered for promotion but their grades have been indicated as per ACR grading. This is particularly true for the year 1996. Qua the petitioner, for the year 1992 a different method has been followd.

Prima faice the entire process of selection for the years 1992 owards till the years 1996 stands vitiated.

Before proceeding ahead with the matter, this Court would like the respondent to take note of the observations of this Court as above and reconsider the matter. Quashing of the selections effected would result in large number of persons being displaced, a situation which may create administrative chaos.

28. The promotion policy of the UTI deals with the criteria, which is as follows:

SELECTION OF PROCEDURE

As in IDBI, we may have the offricers classified into two clusters, namely, Junior Management, Cadre, compising of Grades 'A', 'B' and 'C' and Senior Management Cadre, comprising of Grades 'D', 'E', 'F' and above. For the promotions in Junior Management Cadre, seniority and merit assessed by the performance Appraqisal for the last 5/4/3 years Along with a special Confidential Report as regards potential to be obtained. The candidates will have to appear for a Personal Interview before a Selection panel as indicated hereunder. Regarding promotions within the Senior Management Cadre, which should be treated as Slection Grade, the merit will have more weightage than seniority. It is proposed that the candidates in Grades 'D', 'E' and 'F' may also be subjected to interview before the Selection in Panel. In addition to the Officer's potential appraisal.

29. The UTI had issued a circular, on 28-10-1994, which reads as follows:

ALL THE DEPARTMENTAL HEADS AT CORPORATE OFFICE AND ZONAL/BRANCH OFFICE IN-CHARGES.

ADMINISTRATION CIRCULAR No. 16/94-95

PROMOTION, PLACEMENT and TRANSFER POLICY FOR OFFICERS

Please refer to Administration Circular No. 40/90-91 dated February 27, 1991 and Administration Circular No. 03/94-95 dated August 2, 1994 on the captioned subject.

On a review, it has been decided to revise the eligibility criteria for promotion of Officers from Grade 'B' to Grade 'C' from Grade 'D' to Grade 'E' and from Grade 'E' to Grade 'F' as under:

A Minimum of 2 years service in Grade 'B' for promotion to Grade 'C'

A minimum of 1 year service in Grade 'D' for promotion to Grade 'E' subject to availability of vacancies.

A minimum of 2 years service in Grade 'E' for promotion to Grade 'F', subject to availability of vacancies.

The contents of this circular may please be brought to the notice of all the officer staff attached to your Department/Office.

30. A subsequent circular dated 6-5-1997 introduced the concept of zone of consideration while examining cases for promotiom; the circular reads as follows:

ALL THE DEPARTMENTAL HEADS AT CORPORATE OFFICE AND ZONAL and BRANCH OFFICE IN-

CHARGES ADMINISTRATION CIRCULAR No. 28/96-97 PROMOTION, PLACEMENT AND TRANSFER POLICY FOR OFFICERS

Please refer to Administration Circular No. 40/90-91 dated February 27, 1991, No. 3/94-95 dated August 2,1994 and No. 16/94-95 dated October 28, 1994 on the captioned subject.

On a review, it is decided that keeping the eligibility criteria for promotion of officers in different grades unchanged, the number of officers to be called for interview/considered for promotion will be 3(three) times the number of anticipated vacancies (normal zone of consideration).

Whenever the Reservation pollicy is applicable, if adequate number of eligible candidates in the SC/ST category are not available within the normal Zone of consideration, the Zone of consideration may be extended up to 5(five) times the number of anticipated vacanices, in respect of eligible candidates belonging to SC/ST (and not any other) category.

The conttents of this circular may be brought to the notice of all the officer staff attached to your Department/Office.

Sd/-

S.K. Dasupta

General Manager,

(Personal and Administration)

Findings:

31. The first issue to be decided is regarding the legality of the reprimand, a penalty imposed upon the petitioner, on 24.11.1992. He was initially placed under suspension pending decision on action to be initiated; Later a charge sheet was issued, seeking his explanation. The charge levelled was that in respect of the issue of 'Master Plus' shares issued by the UTI the petitioner had ensured that his mother's application, submitted after expiry of the last date notified for the purpose, was accepted. The enquiry led to findings of guilt. The Petitioner was reprimanded. His appeal was rejected. It was contended that there was no misconduct, since acceptance of such belated application was an unwritten practise.

32. Here, the Petitioner impugns the penalty imposed, as unjustified and unwarranted. There is nothing an record to suggest procedural irregularity or illegality in the conduct of departmental proceedings as to impel a finding that the petitioner's reprimand is unlawful or arbitrary. I am of the opinion, that the petitioner willingly participated in the proceedings, and accepted the penalty. He appears to have woken up to its adverse impact upon his career, and therefore, challenged it about 7 years later. Apart from an inability to point out any unfairness about the proceeding leading to a proven misconduct (as there can be no two opinions that such behavior in ensuring acceptance of a belated application would amount to misconduct) the petitioner has approached the court after considerable delay. This claim is therefore, also barred by the principle of laches

33. The next question is whether the extension of officiation in grade D was arbitratry and unjustified. The Petitioner was promoted to grade D w.e.f 1.1.1992, on officiating basis; the order placing him under suspension was issued 10.04.1992 . The enquiry officer, who conducted the Departmental proceedings, submitted his findings on 15.09.1992; penalty was proposed on 30.10.1992 the petitioner was reprimanded on 24.11.1992. His appeal against reprimand was dismissed on 12.2.1993. In the discussion regarding legality of the departmental proceedings, I had concluded that no infirmity had been established and that the petition was barred by laches on that score. Here too, I do not find any culpability by the respondents in seeking to extend the period of officiation. The explanation given is that the petitioner was facing an enquiry into charges of misconduct. This explanation can neither determined as extraneous or irrelevant. The good behavior of an employee is necessarily and treimsicilly connected with the employer's decision to confirm him or extend the period of officiation/ probation. The continued suspension of the petitioner which culminated in the reprimand order is therefore sufficient explanation for the prolongation of his period of officiation. Besides, the petitoner has raised this issue after an inordinate delay. Therefore on both merits as well as on the question of delay, he cannot cliam any relief.

34. The most important issue requring determination is whether the Petitioner was illegally ignored for promotion to Grade C for the panel years 1994, 1995, and 1996. The policy of UTI, applicable for promotorion to such posts is `Seniority-cum-merit'. The cicular of 1994 quoted above reduced the eligible service in the feeder post, to years. By the subsequent ciruclar the UTI, for the first time, introduced the concept of zone of consideration. The petitioner had alleged arbitrariness in the process and contended that several of his juniors were promoted; he alleged that the UTI had recorded an uncommunicated, secret adverse remark in his service files. The UTI conteds that as per its policy, promotion to grade C is to be on the basis of perfromance in the interview, where the candidate has to obtain a minimum standard. It has also pointed out that several persons senior to the petitioner were not promoted as they did not measure up to the relevant standard. In the additional affidavit, filed on 26.08.2004 the UTI has averred that for the concerned years, i.e 1994, 1995 and 1996, 36,23 and 5 persons respectively who were senior to the petitioner were not promoted. It was further claimed that for these years the minimum passing grades were A+, A and B+; A+, A and B and A respectively, as against which the petitioner secured C-. C and C respectively.

35. The Supreme Court, in K. Samantary v. National Insturance Co. Ltd. held that:

7. The principles of seniority-cum-merit and merit-cum-seniority are conceptually different. For the former, greater emphasis is laid on seniority, though it is not the determinative factor, while in the latter, merit is the determinative factor. In State of Mysore v. Syed Mahmood it was observed that in the background of Rule 4(3)(b) of the Mysore State Civil Services (General Recruitment) Rules, 1957 which required promotion to be made by selection on the basis of seniority-cum-merit; that the rule required promotion to be made by selection on the basis of 'seniority subject to the fitness of the candidate to discharge the duties of the post from among persons eligible for promotion'. It was pointed out that where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority along and if he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted.

36. The UTI relied upon by Siavaiah's case (supra). In that decision it was held as follows:

18. We thus arrive at the conclusion that the criterion of 'Seniority-cum-merit' in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit and competent authority can lay down the minimum standards that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and intgerview and prescribing the minimum marks which would entitle a person to be promoted on the basis of 'seniority-cum-merit'.

36. The Court was delaing with appeals from promotions orders in respect of different Gramin Banks. The Court discussed the case regarding Pinakini Grameena Bank as folows:

From the cirular dated March 16, 1992 laying down the promotion process, it is evident that selection was to be made on the basis of marks to be awaqrded by the Selection Committee and that out of total number of 100 marks, 55 marks were to be awarded for seniority while 25 marks were assigned for performance and 15 marks for interview. There was no indication in the said circular as to how 55 marks of seniroity were to be given to the Branch Managers who were eligible for consideration for promotion on March 31, 1992. The said circular did not prescribe minimum qualifying marks for assessment of performance and merit on the basis of which an officer would be considered for being selected and, as pointed out by the High Court, the selection was made of only those officers who secured highest number of marks amongst the eligible officers. In the circumstances, the High Court, in our view, has rightly held that this method of selection was contrary to the principle of 'seniority-cum-merit' and it virtually amounts to the application of the principle of merit-cum-seniority. We, therefore, do not find any merit in Civil Appeal Nos. 3809-3810 of 1996 and 3798 of 1996 and the same are also liable to be dismissed.

37. The same judgment discusses the appeals in relation to Bastark Kshetriya Gramina bank , as follows:

32. We have heard the learned Counsel for the appellants. It is not disputed that the selection was made on the basis of marks assigned on the basis of interview by the Selection Committee and those who secured the highest marks were selected. The Selection process adopted for the purpose of promotion to the post of Area Manager/Senior Managers was thus not in consonance with the principle of 'seniority-cum-merit' and the promotions were not made in accordance with the Rules. Civil appeals arising out of Special Leave Petition [C] No. 17780-81 of 1997 are, therefore liable to be dismissed.

38. The factual narrative shows that the petitioner was promoted to Grade B on 1-1-1992; as per eligibility norms, he could be considered for further promotion after he completed two years service. He did so in 1994; there is no denial that he was considered then. During the intervening period, he was reprimanded after a departmental enquiry. The UTI avers that as per its norms, the petitioner was not denied promotion on the basis of any adverse ACRs, but because he did not perform well in the interview. This position emerges from its affidavit, dated 26-8-2004 where, for the first time, in response to directions of the court, the UTI alleged that the petitioner could not be promoted, since it adopted a uniform standard of adjudging the merit of eligible candidates, and promoting only those who measured up to the standard prescribed.

39. The judgments of the Supreme Court have explained the content of the expression 'seniority cum merit' to say that greater emphasis is laid on seniority, though it is not the determinative factor, while in the case of 'merit cum seniority', merit is the determinative factor. A complete reading of the decision in B.Shivaiah, to my mind, shows that the management is no doubt within its rights to prescribe a certain minimum standard to be achieved, by candidates, in interviews. However, that would by itself not be the overwhelming consideration; in such a case, the selection process would be on the basis of merit, sans all other considerations.

40. The promotion policy undoubtedly adverts to the candidate having to face an interview. However, it is silent as to the criteria to be adopted. The UTI's explanation in this regard is that as per terms of some settlement, arrived at workmen have to qualify to a minimum standard, to earn promotion. Neither was the copy of such a settlement produced, nor even was any explantion given as to how the terms of an industrial settlement would apply to management level employees. Likewise, no material was placed to show how the criteria disclosing minimum interview standards was evolved; no circular or policy guideline in that regard was placed. A bald averment to the effect that the Selection Committee is within its right to prescribe standards, had been made.

41. Apart from the above features, the UTI has nowhere disclosed as to what weightage was given for Apprisal reports, and seniority, as opposed to the standard to be achieved in the interview. The picture which emerges is that the UTI used the interview procedure to screen out candidates, who were other wise eligible. The relative weightage to be given to different factors such as ACRs, and seniority were overlooked. These, in my view strike at the root of the criteria prescribed, viz. Seniority cum meirt. As decided by the Supreme Court, in Shivaiah's case, the UTI could not have completely shut out consideration of these essential aspects, in view of the seniority cum merit rule. These, coupled with complete lack of materials, by way of circulars, guidelines or regulations, to support the stand of UTI, in spite of the matter having been pending for over 7 years, and after its having filed about three affidavits, are a strong pointer that the process of consideration of the petitioner's name was riddled with fatal infirmities.

42. In view of the foregoing discussion, the petition is entitled to succeed. The respondent is directed to review the DPC so far as the petitioner is concerned, for the promotion to Grade C for the panel years 1994, 1995 and 1996, and consider his records afresh, after giving appropriate weightage for senioirity and his ACRs.

43. The writ petition is allowed in the above terms. Rule made absolute accordingly. The respondent shall bear the costs of this proceeding, assessed at Rs. 15,000/-.