Ashok Khosla S/O Sh. I.S. Khosla vs Union Of India (Uoi), Ministry Of ...
2006 Latest Caselaw 1618 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner, who was an employee of the respondent No. 2 bank, has challenged the circular dated 29th July, 1999 issued by the Chief general Manager of the Bank, detailing the policy as adopted by the bank. The petitioner's grievance is, more particularly, against the following clauses:

(i) If an officer is unable to complete the mandatory R/SU assignment for any reason attributable to him/her, his/her promotion will have to be withdrawn and he/she will not be permitted to officiate in higher grade(s). This withdrawal can go back to two/three grades also i.e. to the grade in which the officer was when he/she gave the undertaking for completing the mandatory assignment.

(vii) If an officer opts for voluntary retirement/resignation, the Bank would not permit such retirement/resignation unless he/she either completes the mandatory R/SU assignment or makes a request in writing to withdraw his/her promotion(s) as he/she cannot complete R/SU assignment and be retired. In case the officer applies for retirement/resigns, without making a request in writing for withdrawal of promotion(s), the Bank may withdraw his/her promotion(s) based on the undertaking already given and thereafter permit the officer to retire/resign.

2. The petitioner has also challenged the withdrawal of his promotion under the above policy of MMGS-II, on his seeking retirement under Voluntary Retirement Scheme and retiring him as JMGS-I on the ground that the petitioner had not completed mandatory Rural/Semi Urban Assignment of three years. The contention of the petitioner is that he was never called upon to go through Rural/Semi Urban Assignment, although he had, after circular dated 29th July, 1999, communicated to the bank management that he had no intention to disobey any order but his representation given, should be considered by the bank. The petitioner submitted that the compulsory posting for Rural/Semi Urban Assignment should not be made applicable to a physically handicapped person like him as he was suffering from polio disorder resulting in disability of lower limbs.

3. The ground for challenging the circular are that the circular violates the fundamental rights of the petitioner and was contrary to the Government of India's guidelines issued in this behalf. He submitted that the Union of India had issued circular dated 15.2.1999 for public sector banks whereby Banks were directed that subject to an administrative exigency, a physically handicapped person employed in public sector banks in any cadre, normally be exempted from routine periodical transfers. The petitioner's plea is that physically handicapped persons are normally not transferred even on promotion if vacancy exists in the same branch/office/town/city. The circular of the Bank dated 29th July, 1999 violates the circular of Union of India dated 15.2.1999 being contrary to it. The decision of transfer, in case of a physically handicapped person, should be taken keeping in view the human angle. Therefore, circular dated 29th July, 1999 was arbitrary and violative of fundamental rights since it provided for a Rural/Semi Urban Assignment postings irrespective of the physically handicapped of the petitioner and the persons similarly situated. The other plea is that Clause 7 of the circular allows the respondent No. 1 to take advantage of its own wrongs, in as much as, if a person has not been offered any Rural/Semi Urban Assignment, the benefit of promotion are withdrawn even if a person is otherwise qualified to apply for Voluntary Retirement Scheme. The refusal of the respondent to exempt a handicapped person having permanent disability from compulsory Rural/Semi Urban Assignment posting was arbitrary and violative.

4. The factual background of the case is that the petitioner was working in the State Bank as JMGS I. He had not completed three years in Rural/Semi Urban Assignment posting. However, he was considered for promotion by the bank to the next higher scale of MMGS II on giving an undertaking that he shall complete Rural/Semi Urban Assignment posting. The petitioner, at the time of his promotion from JMGS I to MMGS II gave an undertaking in the following words:

I hereby undertake to complete the required period of service as per the norms laid down by the Bank in a rural and /or semi urban branch immediately after my posting/promotion.

I also undertake to forgo the promotion in the event of failing to complete the required period of service at a Rural semi urban branch for reasons attributable to me.

5. At the time when he gave undertaking, he did not raise any issue that this condition of posting to Rural/Semi Urban Branch was illegal and should not be applicable to physically handicapped person like him. This condition of promotion of an officer was prevalent in the bank since 1986. In State Bank of India v. Kashinath Kher and Ors. this policy had come under scrutiny of Supreme Court. A perusal of this judgment would show that this policy was applicable since 1986. General guidelines for the promotion of MMGS- II were issued by the bank in 1990. The petitioner, at that time, was in the service of the bank and knew about the policy. He did not challenge the policy. The validity of the criteria of service in Rural/Semi Urban Assignment area was upheld by the Supreme Court in above judgment and Supreme Court approved the policy of the bank in granting promotions to those who had not completed the line assignment in Rural/Semi Urban Assignment only on the condition of their giving undertaking and completing the same. In this judgment, Supreme Court directed the bank to make a distinction between those who had deliberately refused to take such assignment and those who had no opportunity to take such assignment and those who had shown unwillingness to undergo such assignments.

6. In the counter affidavit filed by the respondent, the respondent had taken stand that the Executive Committee of Central Board had been issuing circulars regarding promotion policies from time to time and in its meeting dated 21st October, 1989, the policy was adopted that all officers of JMGS I, MMJS II were required to put in a minimum stipulated service in a rural or semi urban branch before they are being considered for promotion to MMGS II and MMGS III. For JMGS I, the stipulated period in Rural/Semi Urban Areas was three years and for MMGS II, the stipulated period was minimum two years. The policy was made effective from 1988 onwards. In Kashinath's case, the Supreme Court held that the bank was justified in adopting the procedure of granting ad hoc promotions to such officers who had not completed Rural/Semi Urban Assignment but were willing to complete the same. Their promotions were to remain ad hoc till they completed the Rural/Semi Urban Assignment. Supreme Court observed that the criteria of completing satisfactory lines assignment and service of Rural/Semi Urban Branches being condition of service, cannot be relaxed.

6. The respondent, further submitted in the counter affidavit, that the petitioner was considered for promotion and later on promoted to MMGS II on his giving undertaking as stated in para 4 above. The circular dated 29th July, 1999 was issued in terms of the Government of India guidelines after the judgment passed by the Supreme Court to clarify and reiterates the policies. In paragraph 7 of the counter affidavit, it is submitted that the petitioner, after his promotion to MMGS II, started making various representations to competent authorities, requesting that he should not be transferred in Rural/Semi Urban Branch. His representations were considered and vide letter dated 3rd November, 1999, it was clarified to the petitioner that physically handicapped officers were not exempt from mandatory Rural/Semi Urban Assignment. However, they may not be posted to very difficult or far off places. The petitioner, thereafter, made a representation that he should be transferred to Jahangir Puri Branch for completing Rural/Semi Urban Assignment. Since there was no post available in Jahangir Puri Branch, this request of the petitioner could not be accepted. The petitioner was posted on 10th February, 2001 to Dhunda Hera area Branch of Delhi for completing Rural/Semi Urban Assignment.

7. The bank, on the recommendations of Indian Banks Association, introduced a specific scheme titled as SBI Voluntary Retirement Scheme. Although, there were already provisions in the existing service conditions for its employees to take Voluntary Retirement, SBI Voluntary Retirement Scheme was a special and distinctive scheme offering a package to its employees and the scheme was made operative for a limited period. It was not a continuous scheme. It was prerogative of the bank management either to accept the application or reject the same depending upon the requirement of the bank. The scheme specifically provided and clarified that if an officer had not completed mandatory Rural/Semi Urban Assignment but still was willing to take V.R.S., he may submit an application for retirement under SBI Voluntary Retirement Scheme but his request would be subject to provisions contained in the circular dated 29th July, 1999 whereby it had been made clear that in case of an officer taking Voluntary Retirement Scheme before completing Rural/Semi Urban Assignment, he shall be reverted back to his previous post and promotion would not be considered effective.

8. The petitioner applied for V.R.S despite knowing that in case of his application for V.R.S being accepted, his ad hoc promotion shall become ineffective and he shall be retired in his previous Grade. He made application dated 31st January, 2001, accepting all the conditions of V.R.S. In the application, he undertook to abide by all the terms and conditions of SBI Voluntary Retirement Scheme unconditionally and irrevocably. After this application, the respondent still gave an opportunity to the petitioner and others who had applied for SBI Voluntary Retirement Scheme to withdraw the application on or before 15th February, 2001. The petitioner did not withdraw his application and opted for SBI Voluntary Retirement Scheme with all its limitations and benefits.

9. Since he had not taken the posting in Rural/Semi Urban Branch and had been making representations one after another that he should not be given this posting till the time of applying for V.R.S in terms of Clause-vii of circular dated 29th July, 1999, his V.R.S. was accepted in the previous Grade of JMGS I. The SBI Voluntary Retirement Scheme was a package with a built in incentive. It was a kind of golden hand shake subject to terms and conditions stipulated therein. The application for SBI Voluntary Retirement Scheme was in a prescribed format and the application, inter alia, contained undertaking that in case of any dispute as to interpretation of any of the terms and conditions of the Scheme, the decision of bank shall be final and binding on the applicant. After the application of the petitioner was accepted, he took the amount as calculated under V.R.S without demur and after encashing cheques he filed this writ petition, assailing withdrawal of his promotion in terms of the clause of the circular, which he challenged.

10. I have heard argument of both sides and perused the record. In Bank of India v. O.P. Swarnkar 2003 SCC(LandS) 200, Supreme Court had considered V.R.S. Schemes of different banks including State Bank of India. While upholding the right of an employee to withdraw from the scheme till the resignation was finally accepted and he was retired from service, Supreme Court observed that where an employee has accepted ex gratia payment or any other benefits under the scheme, such an employee could not resile there from. The Scheme was contractual in nature. The employee concerned having accepted a part of the benefit, could not be permitted to approbate and reprobate and nor they can be permitted to resile from their earlier stand.

11. The Voluntary Retirement Scheme offered by State Bank of India was not a compulsory retirement scheme. Only those who wanted to get rid of their present employment and venture into new field, had actually sought benefit of this scheme, like the petitioner. The petitioner after getting rid of that employment where he was claiming that he should not be posted to any Rural/Semi Urban Branch because he was handicapped, had taken the lucrative profession of an advocate and has been going from one floor to other floor of Tis Hazari Courts and other courts, arguing cases of his clients, despite being handicapped. The petitioner knew it very well, before making application that he had given an undertaking to do Rural/Semi Urban Assignment and he was not willing to go for Rural/Semi Urban Assignment. He tried his level best that he be exempted from Rural/Semi Urban Assignment and made representations after representations. He was told in response to his representations that he cannot be exempted, being a pre-condition of promotion, meaning thereby, that either he should forgo the promotion or he should take Rural/Semi Urban Assignment for a minimum period of three years. While turning down the request of the petitioner, directions were given that he should not be given a hard posting. Considering this, he was given a positing at rural branch within Delhi, but instead of taking rural posting, he opted for voluntary retirement scheme. That only shows that the petitioner was not at all interested in rural posting and when Rural/Semi Urban Assignment came, he took the opportunity of retirement with a golden shake hand. The petitioner had entered into this contract of V.R.S with open eyes with ample opportunity of withdrawal from the contract but still chosen to stick to the contract. Now the petitioner cannot turn around and say that some of the conditions of the contract were not good.

12. The other contention of the petitioner is regarding circular of Union of India that a handicapped person should not be transferred even on promotion, if possible, out of branch, out of city, out of town. The petitioner has not been able to show how the circular of the bank dated 29.7.1999 was in violative of the circular of the Union of India dated 15.2.1999 While he was JMGS I, he had not undertaken any rural posting. He gave an undertaking at the time of his promotion of doing rural posting. If he considered that he was not capable of doing Rural/Semi Urban Assignment due to handicappedness, he should not have given undertaking. After taking promotion, he started pleading that he should be exempted from rural posting. I consider that this attitude of having a cake and eating it as well, is not workable.

13. The petition is also liable to be dismissed on the ground of delay and latches. The circular is in existence since 1999. The petitioner filed this writ petition in the year 2001. The circular clearly stated that the application for VRS can be allowed only on the basis of conditions mentioned in the circular. If the petitioner wanted that he should remain as MMJS-II and be promoted further in the bank, nobody stopped the petitioner from continuing with the bank and doing Rural/Semi Urban Assignment.

14. I find no force in the writ petition. The same is hereby dismissed. No orders as to cost.