Punjab & Sind Bank vs Rakesh Mehta & Ors.
2011 Latest Caselaw 3282 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+            LETTER PATENT APPEAL NO. 575 OF 2010


Punjab & Sind Bank                                ....Appellant
                Through         Mr. S.K. Taneja, Sr. Advocate with
                                Mr. Jagat Arora, Advocate.

                    VERSUS

Rakesh Mehta & Ors.                              ....Respondents
               Through          Mr. S. Chaturvedi, Advocate for
                                respondents No. 1 to 3.

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

% 12.07.2011

Punjab & Sind Bank has filed the present intra court appeal

to assail the decision dated 1st July, 2010, passed by the learned Single

Judge allowing Writ Petition (Civil) No. 2497-99/2004.

2. The said writ petition was filed by Mr. Rakesh Mehta, Mr. H.S.

Tuteja and Mr. J.S. Bawa, respondents No. 1 to 3 herein, who had

challenged the seniority list circulated under the cover of the letter

dated 28th February, 2003, where the respondents 1 to 3 were shown at

serial nos. 13, 14 and 12 respectively and Sukhbir Singh Bhatia, Daljit

Singh Kochar, Gurpreet Singh, Nalin Kumar Hazarika, Ritu Malhotra and

Balbir Singh, i.e. respondents No. 4, 5, 6, 7, 8 & 9 herein, were shown as

senior to them. Learned single Judge has quashed the said seniority list

and held that the seniority list of Electronic Data Process (EDP, for

short) officer cadre as on 31st March, 2001, circulated under the cover

of letter dated 22nd December, 2001 was correct. Another direction

given by the learned single Judge is that the result of the MMGS-III

examination conducted in the year 2002 be declared and if the

respondents 1, 2 and 3 herein have cleared the said examination, they

should be promoted to MMGS-III cadre w.e.f. 2002-03 and they would

be entitled to consequential benefits.

3. The appellant bank vide Staff Circulatory letter dated 10th March,

1997 had informed that they had decided to create a specialist cadre,

inter-alia, EDP by way of induction from officers in JMGS-I and MMGS-II

and thereafter by way of promotion. Officers in the JMGS-I and

MMGS-II, who were desirous of induction into the EDP cadre, were

required to fill up the prescribed form. Options were required to be

exercised on or before 12th April, 1997.

4. Upon creation of EDP cadre, a seniority list as on 31st March,

2001 was circulated under the cover of letter dated 22nd December,

2001. The respondents 1, 2 and 3 were shown at serial nos. 4, 5 & 3

respectively and senior to respondents 4 to 9 herein. However, the said

list was superseded by another list circulated under the letter dated

28th February, 2003 and the first three respondents were shown at

serial nos. 13, 14 & 12 respectively and respondents No. 4 to 9 were

shown as senior to them. The seniority was determined on the basis of

appointment/induction in the EDP cadre. Thus the date on which the

letter of appointment was issued or the date of induction in the MMGS-

II grade in the EDP cadre was the principle or the rule applied by the

appellant for determining inter-se seniority.

5. The learned single Judge did not agree with the said principle and

in our opinion, the decision of the learned single Judge is correct.

6. The seniority lists circulated under the cover of letters dated 22nd

December, 2001 and 28th February, 2003 have been examined by us.

The relevant portion of the said seniority lists read as under:-

Seniority list circulated vide letter dated 22nd December, 2001

S. Name of Officer Date of Educational/ Date of Date of Dt. Of Present palace No. Birth Prof joining promotion Induction in of posting qualification in Scale-I Specialist cadre

1.

2.

3.    Jatinder   Singh    29.11.1953    M.Com.-        16.07.1977   26.04.1996    16.09.1997     EC: AMRITSAR
      Bawa                                CAIIB
4.    Rakesh Mehta        07.02.1953   MSC-COM-        12.08.1977   26.04.1996    16.09.1997     HO: ZONAL: INS
                                       DIP- BLIBSC
5.    Harbhajan   Singh   13.08.1951     MCOM-         18.09.1975   26.04.1996    16.09.1997     HO:ADVANCE
      Tuteja                            CAIIB-DM                                                    (NPS)




 6.         Sukhbir      Singh         19.9.1953          MSC           20.01.1978       19.08.1997     19.08.1997     ZO: LUDHIANA
           Bhatia
7.         ........

8.         Daljit Singh Kochar       13.11.1955       MA-CA-IIB-       04.01.1980       19.08.1997     19.08.1997     HO: CREDIT
                                                      DPM & IR                                                       CARD DIVISION

9.         ...

10.        Gurpreet Singh            08.02.1951        MA-ECO          19.01.1977       19.08.1997     19.08.1997       HO:STC,
                                                                                                                      CHANDIGARH

11.        Nalin       Kumar         21.01.1959        MA-ECO-         31.03.1983       19.08.1997     19.08.1997    ZO: GUWAHATI
           Hazaria                                    UNIX-C&C++
12.        Ritu Malhotra             22.05.1959        MA-CAIIB-       06.04.1983       19.08.1997     19.08.1997        BO:
                                                                                                                      CHANDIGARH

13.        ...

14.        BALBIR SINGH              20.10.1953        MA-ECO-         12.02.1976       19.08.1997     19.08.1997    BO:CHANDIGARH
                                                        CAIIB                                                            SEC.22-B
           ..........

Seniority list circulated vide letter dated 28th February, 2003

Seniority FNO Name of Date of Qualifica- Date of Date since Dt. Of Present palace . No. Officer Birth tion joining the when in Induction of posting as on Cadre Bank grade/ in Spl 31.3.2001 scale - II cadre

1. SM Sukhbir 19.9.195 MSC 20.01.1978 19.08.1997 19.08.1997 ZO: LUDHIANA

Bhatia

2. ........

      3.        SM          Daljit         13.11.19      MA-CA-IIB-       04.01.1980      19.08.1997    19.08.1997    HO: CREDIT
                2331        Singh             55         DPM & IR                                                    CARD DIVISION
                            Kochar
      4.                    ...

      5.        SM          Gurpreet       08.02.19       MA-ECO          19.01.1977      19.08.1997    19.08.1997      HO:STC,
                2317        Singh             51                                                                      CHANDIGARH

      6.        SM          Nalin          21.01.19       MA-ECO-         31.03.1983      19.08.1997    19.08.1997   ZO: GUWAHATI
                2344        Kumar             59         UNIX-C&C++
      7.        SM          Ritu           22.05.19       MA-CAIIB-       06.04.1983      19.08.1997    19.08.1997       BO:
                2343        Malhotra          59                                                                      CHANDIGARH

      8.                    ...

      9.        SM          BALBIR         20.10.19       MA-ECO-         12.02.1976      19.08.1997    19.08.1997   BO:CHANDIGAR
                2321        SINGH             53           CAIIB                                                       H SEC.22-B
     10.        ...
     11.        ..
     12.        SM          Jatinder       29.11.19       M.Com.-         16.07.1977      26.04.1996    16.09.1997    EC: AMRITSAR
                1863        Singh             53           CAIIB
                            Bawa
     13.        SM          Rakesh         07.02.19      MSC-COM-         12.08.1977      26.04.1996    16.09.1997   HO: ZONAL: INS
                1876        Mehta             53         DIP- BLIBSC
     14.        SM          Harbhajan      13.08.19        MCOM-          18.09.1975      26.04.1996    16.09.1997    HO:ADVANCE
                1956        Singh             51          CAIIB-DM                                                       (NPS)

7. As per the list issued under the cover of letter dated 22nd

December, 2001, respondents 1, 2 and 3 were at serial nos. 4, 5 and 3

respectively and the respondents 4, 5, 6, 7, 8 and 9 were shown at

serial nos. 6, 8, 10, 11, 12 and 14 respectively. However, as per the list

issued under the cover of letter dated 28th February, 2003, the

respondents Nos. 1, 2 and 3 are shown at serial nos. 13, 14 and 12

respectively and respondents No. 4, 5, 6, 7, 8 & 9 are shown at serial

nos. 1, 3, 5, 6, 7 and 9 respectively.

8. As noticed above, the appellant vide letter dated 10th March,

1997 had invited applications for posts in the Specialist Cadre of EDP.

The applications were required to be submitted by a particular date

from officers already working in the general cadre in JMGS-I and

MMGS-II. A cut-off date was fixed for receipt of applications.

Thereafter, applications were processed by the appellant and the

appointment letters were issued for induction into the newly created

cadre. The date of issue of appointment letter cannot be the criteria to

fix inter-se seniority by treating the date of issuance of the letter as the

date of induction. If the stand of the appellant is accepted, it will lead

to injustice and will be unfair. The fortuitous date on which the

appointment letter was issued cannot be the basis for fixing inter-se

seniority. This aspect has been further elaborated below.

9. Learned counsel for the appellant has relied upon Regulation 18

of Punjab & Sind Bank (Officers) Regulations, 1982. The said Regulation

reads as under:-

"18(1) Each year the Bank shall prepare a list of officer in its service showing their names in the order of their seniority on an all India basis and containing such other particulars as the Bank may determine. A copy of such list shall be kept at every branch or office of the Bank.

(2) Seniority of an officer in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. Where there are two or more officers of the same length of service in that grade or scale, their inter-se seniority shall be reckoned with reference to their seniority in the immediately preceding grade or scale or the previous cadre to which they belonged to in the Bank's service. Where two or more officers have the same length of service in such preceding grade or scale or such previous cadre their seniority shall be determined with reference to their seniority in the immediately preceding grade or scale or cadre, as the case may be."

10. Regulation 18(2) talks of seniority of officers in a grade or scale

shall be reckoned from the date of appointment in that grade or scale.

It also provides how seniority has to be determined in case two or more

officers have same length of service in the same grade/scale. The

respondents No. 1 to 3, before being appointed in the specialized EDP

cadre were already working in MMGS-II grade and were senior to

officers in JMGS-I. Their induction into specialized EDP resulted in a

horizontal movement. On the other hand, respondents 4 to 9 were

promoted from JMGS-I in the specialized EDP cadre. The said

respondents were not in MMGS-II grade before they were promoted

from the lower JMGS-I grade. Thereupon they were appointed in

MMGS-II grade. Thus the appellant had wrongly applied Regulation

18(2).

11. The plea of the appellant that the grade or scale referred to in

regulation 18(2) means the grade/scale on appointment in the EDP

Specialised cadre, cannot and should not be accepted. The date of

appointment of the respondents 1, 2 and 3 and respondents 4 to 9

should be reckoned and treated as the same. The date of issue of

appointment letter for their induction cannot be the basis. As noticed

above, this would be whimsical and unequitable. It would result to

giving sanction and accepting that the fortuitous circumstance, the date

when the appointment letter in the EDP cadre was issued would

determine the seniority. All the respondents were appointed and

selected by the same selection process, but some of them were issued

appointment letters earlier. There is no explanation or reason why

appointment letters were not issued on the same day. The

appointment letters were issued by the appellant but these were not

issued on the basis of any seniority or merit list.

12. Accordingly, the seniority list circulated under the cover of letter

dated 28th February, 2003, has been rightly rejected and struck down

and the seniority list circulated under the cover of letter dated 22nd

December, 2001 has been rightly restored by the learned Single Judge.

13. In 2002, examination for promotion from MMGS-II to MMGS-III

was held. Only those who had completed five years in MMGS-II grade

could appear in the said examination. Respondents 1 to 3 had

appeared in the said examination, but their results were not declared

because in the meanwhile the appellant had circulated the seniority list

under the cover of letter dated 22nd February, 2003. It is accepted by

the appellant that the respondents 1 to 3 had completed 5 years in

MMGS grade II in the year 2002.

14. Once the seniority list issued under the cover of letter dated 22nd

February, 2003 is set aside, the appellant is required to declare the

results of the written examination held in 2002 and consider and

examine respondent nos. 1 to 3 for promotion to MMGS Grade III. It

was admitted by the learned counsel for the appellant during the

course of arguments that marks in the written examination are

available. As per the recruitment rules placed on record by the

appellant, all candidates who obtain a minimum of 35% marks in the

written test and not more than 3 - 4 times the number of vacancies,

have to be considered for promotion on merit. Performance and job

responsibility are the two other aspects which are to be examined. In

case respondents 1 to 3 have qualified the written examination, the

appellant will examine whether the said respondents should be

promoted in accordance with and as per the recruitment rules. It may

be noted here that two of the said respondents namely Rakesh Mehta

and Mr. Jatinder Singh Bawa were promoted to MMGS-III in the year

2007. The effect of the present order is that in case the said

respondents are found fit for promotion, they shall be notionally

promoted in 2002-2003. However, the said respondents will not be

entitled to back-wages.

15. In view of the aforesaid, the present appeal is disposed of.

Direction/decision of the learned single Judge quashing the seniority list

circulated under the cover of the letter dated 28th February, 2003 is

upheld. The appellant will follow the seniority list of EDP officers,

circulated under the cover of letter dated 22nd December, 2001. The

appellant will also examine whether respondents 1 to 3 are entitled to

promotion as per the recruitment rules to MMGS-III in the year 2002-

2003 and if they are found fit for promotion, they will be notionally

promoted to the said grade. However, they shall not be entitled to

back wages. The appellant will also pay costs of Rs.35,000/- to

respondents 1 to 3, which has been imposed by the learned single

Judge.

Sd/-

(SANJIV KHANNA) JUDGE

Sd/-

( DIPAK MISRA ) CHIEF JUSTICE

July 12, 2011 Kkb