B.R.Sharma vs Syndicate Bank
2011 Latest Caselaw 1782 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI
%                  W.P.(C) 1800 OF 1991
+                               Date of Decision: 28th March, 2011

#      B.R.SHARMA                                      ...Petitioner
!                                      Through: Petitioner in person


                                 Versus


$      SYNDICATE BANK                           ...Respondent
                            Through: Mr. Jagat Arora and Mr. Rajat
                                     Arora, Advocates


       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN
1.   Whether Reporters of local papers may be allowed to see the
     judgment? (No)
2.   To be referred to the Reporter or not? (No)
3.   Whether the judgment should be reported in the digest? (No)


                          JUDGMENT

P.K.BHASIN,J:

The present writ petition has been filed under Article 226 of

the Constitution of India by the petitioner who was employed as an

Assistant Manager in Junior Management Grade Scale-I(JMGS-I) in

the respondent Bank and had been denied promotion to the Middle

Management Grade Scale-II(MMGS-II). He had challenged the

denial of promotion to him by filing the present writ petition.

2. The petitioner was recruited by the respondent bank as a clerk

in 1974 and he claims that as a result of his excellent performance

he was promoted to the JMGS-I in 1978. Further promotion from

JMGS-I was to MMGS-II. The respondent bank had framed a

promotion policy dated 16/04/90 and para no. 11.10 of that

promotion policy provided that the maximum number of officers to

be considered for promotion for MMGS-II were to be restricted to

four times the number of vacancies but in exceptional circumstances

and for reasons to be recorded in writing the zone of consideration

could be enlarged by the Board of Directors of the bank.

3. On 8th May, 1990 the respondent bank issued a circular

which stated that there were 120 vacancies in MMGS-II. As per the

promotion policy of 16.4.1990 a total number of 480 officers could

be considered for promotion but in the vacancy circular dated

08.05.1990 it was stated that all the officers in JMGS-I from

seniority nos.1 to 1218 would be considered for promotion.

Consequent to the circular dated 08.05.1990 a total of 1218 officers

were considered for promotion out of whom 120, whose names were

given in the circular dated 14/08/90(Annexure „C‟ to the petition)

were selected. The petitioner was also considered for promotion but

was not selected. His grievance is that out of the 120 officers

selected for promotion 25 were those whose names figured between

sl. nos. 1 to 480 in the seniority list and the rest were those whose

names figured between sl. nos. 481 to 1218 in the seniority list and if

only 480 candidates had been considered he would have got the

promotion. The petitioner averred in his petition that as per the

promotion policy of the respondent bank, four factors were to be

considered for ascertaining the suitability of the officers for

promotion from one scale to another. The said factors were (a)

seniority, (b) educational and professional qualifications, (c)

performance in scale and (d) potential as identified in the interview.

It was also pleaded in the petition that "The petitioner understands

that he has obtained full marks for seniority and educational &

Professional Qualifications and has obtained 19 marks out of a total

of 30 for performance. Thus, the total marks obtained by the

petitioner are 89 out of a total of 100 marks. The petitioner further

understands that the petitioner‟s name falls within the first 120 if the

merit list is prepared from amongst the persons whose names appear

between sl. No. 1 to 480 in the seniority list." It was also pleaded by

the petitioner that the 120 vacancies in MMGS-II were of the year

1990 and so the performance of the eligible candidates for the

preceding five years was to be considered. Even though his

performance had been rated as „Outstanding‟ by his reporting officer

for the years 1985 to 1988 and for three years during the period from

1986-89 he had been directed to perform the duties of officer-in-

charge at an Extension counter of the bank, which post is manned by

an officer of MMGS-II, but the reviewing officer had erroneously

reduced that rating to „Average‟ for 1985 to 1987 and „above

average for 1988. For the year 1989 the performance rating had not

been communicated to the petitioner. The petitioner claims to have

made an appeal to the appellate authority on 24/10/90 (Annexure „D‟

to the petition) but the same was rejected vide bank‟s letter dated

07/01/91 on the ground that:

"The rank secured by Shri B.R. Sharma in the promotion process did not entitle him to get promoted to MMGS II keeping in the view the number of vacancies declared."

4. Thereafter this writ petition was filed on 27th May,1991 with

the following prayers:

i) issue a writ in the nature of declaration declaring the resolution of the board of directors of the respondent bank dated 4.5.1990 enlarging the zone of consideration from 1 to 480 to 1218 as ultra-vires and illegal;

ii) issue a writ in the nature of declaration declaring all promotions made consequent to enlargement of zone consideration by the respondent as void ab-initio;

iii) issue a writ of mandamus directing the respondent to conduct the entire promotion exercise a fresh limiting the zone of consideration to four times the number of vacancies i.e. 480;

iv) issue a writ of mandamus directing the respondent to re- evaluate /re-assess the performance of the petitioner during the relevant years i.e. From 1985 to 1989;

v) pass any other order, orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case.

5. The respondent bank in its counter affidavit while opposing

the writ petition claimed that the zone of consideration for filling up

of 120 vacancies in MMGS-II was rightly enlarged keeping in view

the guidelines issued by the Government of India, Ministry of

Finance, Banking Division in terms of regulation 17 of the Syndicate

Bank (Officers) Service Regulations according to which the Board of

Directors of the bank was empowered to extend the range for

consideration beyond four times the vacancies in order to include

superceded officers. It was further claimed that the rationale behind

including superceded officers in the range of consideration as an

exceptional circumstance was that otherwise the superceded officers

will have to be interviewed for every promotion process besides

restricting the choice and further that there will be chances of an

officer not getting selected in the past getting excluded in the

process. It was further claimed that as per the nature of promotion

policy followed by the respondent bank even a junior most officer in

the range gets a chance of getting selected by virtue of his

performance and qualifications as against the promotion by

seniority-cum-merit where the junior officers have a chance for

promotion only when a senior officer is found unfit for promotion.

Regarding the allegation of the petitioner that his performance

ratings for the years 1986-88 had been erroneously toned down to

„Average‟ or „Above Average‟ by the reviewing authority the

respondent bank claimed that the Head Office was the final authority

in respect of the ratings to be awarded and for that purpose a

Committee is constituted by the Chairman and Managing Director of

the bank which finally reviews the performance of the officers.

6. The petitioner filed a rejoinder in which he admitted that as

per the guidelines issued by the Government of India the zone of

consideration could be enlarged by including the superceded officers

also for consideration for promotion and also that that was an

exceptional circumstance but the respondent bank had not come out

with the figures as to how many superceded officers in JMGS-I were

there when the process of promotion in respect of 120 vacancies in

question was initiated.

7. It was submitted by the petitioner, who argued in person, that

with the enlargement in the zone of consideration his chances of

promotion had been seriously affected.

8. On the other hand, the case of the respondent bank as put forth

by its counsel is that the zone of consideration for promotion to

MMGS-II was increased by the Board of Directors of the bank for

good reasons. In this regard my attention was drawn to the Board

resolution of 4th May,1990 vide which the following

recommendation made in the Board Note(Copy of which was shown

to me during the course of hearing of the petitioner) to increase the

zone of consideration beyond four times the number of vacancies in

MMGS-II was approved:

" We have reviewed the position of the superceded officers in the promotion process held during 1987 for promotion from MMGS III to SMGS IV ,MMGS II to MMGS III and JMGS I to MMGS II and the number of superceded officers are calculated accordingly. The board of directors vide their resolution dated 19.3.1990 were pleased to sanction 120 vacancies in MMGS II and 60 vacancies in MMGS III. similarly 53 vacancies in SMGS IV are also sanctioned vide resolution dated 3.3.19990. It is felt that by limiting the number of officer as to be considered for promotion to 4 times the number of vacancies an anomalous position will be created, wherein such of those officers who came in the zone of consideration in the earlier promotion process are left out for the proposed promotion process. This situation is neither ethical nor correct and this may create frustration among officers, who have been aspiring for their carrier progression in the organization. So it is appropriate to include all those officers who were superceded in the earlier promotion process, in addition to the 4 times the number of vacancies . In the past the

bank had even considered for promotion all those officers who had completed the minimum length of service prescribed for promotion for movement from one scale to another and in the last promotion process with the approval of the board of directors, we had considered for promotion all those officers in a particular batch , if one officer from batch came within 4 times the number of vacancies declared.

Scale No. of No. of eligible No. of Total No. of vacancies Officers coming superceded Officers to be within the Zone of Officers in eligible for consideration the earlier consideration restricting to 4 times promotion for the the No. of vacancies proposed promotion process JMGS I 120 480 715 1195 to MMGS II MMGS 60 240 995 1235 II to MMGS III

II to SMGS IV

Hence it is recommended that all those officers coming within the

1) Seniority no. 1 to 1218 of circular no. 268/88/BC dated 21.9.1988 will be considered for movement from JMGS I to MMGS II."

9. Learned counsel for the respondent submitted that since the

petitioner had admittedly been considered for promotion but not

selected cannot have any grievance because of his not being

promoted since no employee has a fundamental right to be promoted

and as far as the enlargement of the zone of consideration is

concerned the same might have reduced his chances of promotion

but for that reason the promotions made by the bank pursuant to the

vacancy circular dated 08/05/90 cannot be challenged. In support of

this submission reliance was placed on two judgments of the

Supreme Court in "Daulat Ram vs. Zila Sahkari Kendra Bank Ltd. And

Others", 1991 SCC (L&S) 476 and "Ramchandra Shankar Deodhar and

Others vs. The State of Maharashtra and Others", (1974) 1 SCC 317(para

no. 15).

10. After having considered the rival submissions I am of the view

that this writ petition is liable to be rejected. The petitioner‟s main

grievance was that his chances of promotion had been receded to a

great extent because of enlargement of the zone of consideration by

including therein the superceded officers of the past promotion

process and if that had not been done he would have got the

promotion. It is now well settled and as was rightly contended by

the learned counsel for the respondent bank also that an employee

has only a right to be considered for promotion. The petitioner here

was considered for promotion to MMGS-II but he did not get

promotion since the rank secured by him did not entitle him to get

promoted keeping in view the number of vacancies declared. It is

not the case of the petitioner that he was denied promotion by the

competent authority for some mala fide reasons. It was also rightly

contended by the learned counsel for the respondent, relying upon

the above referred judgments of the Supreme Court that mere

reduction of chance of promotion cannot be made the basis for

challenging the denial of promotion. The petitioner in any event had

allowed the selection process to go on and had approached the Court

only after the results had been declared and he had not been found fit

for promotion and that conduct of his also disentitles him to the

reliefs prayed for. Even otherwise, it being the petitioner‟s own case

that for the period from 1985-88 his performance ratings had been

„Average‟ and „Above Average‟ and nothing having been brought on

record to come to the conclusion that that had been done with mala

fide intention by the final authority in that regard he cannot even

otherwise successfully challenge denial of promotion to him.

11. This writ petition is accordingly dismissed.

P.K. BHASIN,J March 28, 2011 sh