Delhi High Court
Onkar Prasad Jaiswal vs State Bank Of India And Ors on 18 December, 2012
Author: Suresh Kait
$~27 to 33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18.12.2012
+ W.P.(C) 5267/2011 & CM No.10682/2011 (for stay)
ONKAR PRASAD JAISWAL ..... Petitioner
Through: Ms.Tara V. Ganju and Ms. Etti
Sharma, Advocates.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
AND
+ W.P.(C) 5268/2011 & CM No. 10684/2011
RITESH PRASAD ..... Petitioner
Through: Ms.Tara V. Ganju and Ms. Etti
Sharma, Advocates.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
AND
+ W.P.(C) 5600/2011 & CM No. 11426/2011
SUNIL KUMAR PASWAN ..... Petitioner
Through: Ms.Tara V. Ganju and Ms. Etti
Sharma, Advocates.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
W.P.(C) Nos. 5267, 5268, 5600, 6234, 6963, 7739 & 8154 of 2011 Page 1 of 25
AND
+ W.P.(C) 6234/2011 & CM No. 12556/2011
ANURAG THAKUR ..... Petitioner
Through: Ms.Tara V. Ganju and Ms. Etti
Sharma, Advocates.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
AND
+ W.P.(C) 6963/2011
ARUN SINGH ..... Petitioner
Through: Mr. K.S. Kashyap, Advocate.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
AND
+ W.P.(C) 7739/2011 & CM No.17533/2011
ANVITI THAKUR ..... Petitioner
Through: Mr. K.S. Kashyap, Advocate.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
W.P.(C) Nos. 5267, 5268, 5600, 6234, 6963, 7739 & 8154 of 2011 Page 2 of 25
AND
+ W.P.(C) 8154/2011 & CM No.18354/2011
RAMAN KUMAR MORWAL ..... Petitioner
Through: Mr. Sidharth Joshi, Advocate.
Versus
STATE BANK OF INDIA AND ORS ..... Respondents
Through: Mr.Rajiv Kapur and Ms. Vatsala Rai,
Advocate for Respondent Nos. 1 to 3.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
W.P.(C) Nos. 5267-68, 5600, 6234, 6963, 7739 & 8154 of 2011
1. All these petitions raise identical issues, though facts of each petition
are different, hence, all the aforementioned petitions are being decided by a
common judgment by this Court.
2. Facts of W.P.(C) No. 5267/2011 are discussed inter alia, wherein the
petitioner is seeking the following reliefs:-
"(a) Pass a Writ/Order/Direction in the nature of a writ of
Mandamus or any other appropriate writ, order or
direction quashing and declaring as non-est and invalid
the termination order No.HR/L&D/458 (Annexure P-1)
dated May 13, 2001 passed by the Respondent Bank
against the Petitioner;
(b) Stay the operation and effect of termination order
No.HR/L&D/458 dated May 13, 2011 (Annexure P-1) of
Respondent Bank, pending hearing and final disposal of
the present Petition;
(c) Issue a Writ/order/Direction, directing the Respondent
Bank to declare the results of Petitioner for the
Confirmation Test held on March 6, 2011;
(d) Pass a Writ/Order/Direction, directing the Respondent
Bank to reinstate the Petitioner to its post as
Management Executive in the Middle Management
Grade Scale II or Middle Management Grade Scale III of
the Respondent Bank, as would have been assigned to the
Petitioner on the basis of the marks secured in the
Confirmation Test and permit the Petitioner to perform
his duties without any hindrance;
(e) issue a Writ/Order/Direction, directing the Respondent
Bank to pay the back wages to the Petitioner with effect
from June 13, 2011 till the date of reinstatement of the
Petitioner;
(f) Award costs of this Petition to the Petitioner."
3. Learned counsel appearing on behalf of the petitioner submits that on
the similar issue, the petitioner therein filed a petition bearing W.P.(C) No.
1298/2011 titled as Palak Modi Vs. SBI before the Allahabad High Court,
which has been allowed vide order dated 17.11.2011.
4. The respondents have challenged the same before the Apex Court by
filing Civil Appeal Nos. 7841-7842 of 2012 titled as State Bank of India &
Ors. Vs. Palak Modi & Anr.. However, the same were dismissed by the
Apex Court vide its order dated 03.12.2012.
5. Learned counsel for the petitioner submits that the facts of the case
and the issues raised in the instant petitions are identical as has been decided
by the Apex Court in the aforesaid Civil Appeal Nos. 7841-42/2012.
6. The facts of the aforesaid Civil Appeal Nos. 7841-7842 of 2012
decided by the Apex Court read as under:-
"4. The private respondents appeared in the test held on
27.2.2011, the result whereof was declared on 10.5.2011.
Their names did not figure in the result apparently
because Institute of Banking Personnel Selection (for
short, „IBPS‟), an independent expert body engaged in
conducting recruitment for various services, which was
entrusted with the task of preparing the examination
papers and evaluating the answer sheets sent a report to
the Bank that some candidates including the private
respondents are suspected to have used unfair means.
After four days, respondent No.3 issued letters dated
14.5.2011 and extended the probation of the private
respondents for three months by invoking Rule 16(2) of
the Rules. However, without waiting for expiry of the
extended period of probation, respondent No.3
terminated their services vide letters dated 27.6.2011 by
indicating that this was being done under Rule 16(3) of
the Rules.
5. The private respondents challenged the termination of
their services by filing writ petitions mainly on the
grounds that the action taken by the concerned
authorities of the Bank was arbitrary and violative of
the rules of natural justice. They pleaded that during the
period of probation, no one had informed them about
any shortcoming, deficiency or defect in their work
and yet their services were terminated without giving
them notice and opportunity of hearing. The private
respondents further pleaded that even though they had
requested the concerned officers of the Bank to disclose
the reasons for extension of probation and termination of
their service but no response was received from them."
7. The facts of the present case are as under:-
"3 (a) The Petitioner was initially employed with the
Respondent Bank as a Clerk on January 7, 2009, with his
first posting at the Kuteshra Branch (Muzaffar Nagar),
U.P. During his training and probation period for the
post of Clerk, the Petitioner bagged 1st prize in the Exit
Test competition, from AGM, SBLC, Noida of the
Respondent Bank. Thereafter, upon successful
completion of (six) 6 months probation, the Petitioner
was confirmed as an Assistant (Accounts and Cash) of
the Bank on July 7, 2009. While posted at Kuteshra
Branch, the Petitioner performed extremely well and
popularized "Alternate Channels" of Banking and
offered customized services to the customers of the
Banks. Due to the efforts of the bank officials, initiated
by the Petitioner, the said Branch of the Respondent
Bank won Bronze and Silver medals in two successive
quarters in Deposits, which also improved the said
Branch‟s score and received A+ rating in the Delhi
circle audit. The Branch Manager of the Kuteshra
branch of the Respondent Bank also appreciated the
efforts and performance of the Petitioner, and gifted him
a Wall Clock as a token of his appreciation. Further, it
was only because of the outstanding performance of the
Petitioner that the Branch Managers of the nearby
Branches like Charthawal (Muzaffar Nagar) used to
invite the Petitioner on deputation whenever their cash
officer used to go on leave. The Petitioner worked as an
Assistant (Accounts & Cash) with the Bank for 15
(fifteen) months, 9 (nine) months of which were a
confirmed service, prior to his selection as MMGS-II,
Management Executive. A copy of letter dated April 3,
2010, releasing the Petitioner from his duties as the
Assistant (Accounts and Cash), is annexed hereto and
marked as Annexure P-2.
(b) The Petitioner is a mathematics graduate and has a post
graduate degree in Business Management. The
st
Petitioner secured 1 division in both Graduate and Post
Graduate examination. Copies of graduate and post
graduate degrees of the Petitioner are annexed hereto
and marked as Annexure P-3 (Colly).
(c) The Petitioner was hired by a company by the name of
Cipla Pharmaceuticals, at a Campus Placement during
his Business Management Course in 2008 where the
Petitioner worked for 4 (four) months before joining the
Respondent Bank.
(d) The Petitioner also cleared the written exam test for the
post of Tax Assistant, conducted by the Staff Selection
Commission (Northern Region) in the year 2006 and
cleared the ICICI Bank Probationary Officer‟s exam in
January 2009. A copy of letter dated January 2, 2009
issued by ICICI, inter-alia, making a job offer to the
Petitioner is annexed hereto and marked as Annexure P-
(e) The Petitioner is a certified Junior Associate, of Indian
Association of Banker (JAIIB) since January 2011. The
said certification is granted by the Indian Institute of
Banking and Finance (IIBF). Copy of JAIIB certification
of the Petitioner is annexed hereto and marked as
Annexure P-5.
4. The Petitioner thus comes from an unblemished,
meritorious academic record and has served the
Respondent Bank with utmost dedication and honesty in
his previous employment with the Respondent Bank.
5. In the background of the above mentioned academic and
professional accolades of the Petitioner, the factual
matrix leading to the filing of the present Petition are as
under:-
(i) The Respondent Bank published an advertisement being
Advertisement No. CPRD/ME/2009-10/02 for
recruitment to the post of Management Executives
(hereinafter referred to as "MEs"), in the Respondent
Bank in the Middle Management Grade Scale-II
(hereinafter referred to as the "MMGS-II"). A copy of
the advertisement is annexed hereto and marked as
Annexure P-6.
(ii) The eligibility criteria for applying for the post of
MMGS-II, as published in the said advertisement were as
under:
ELIGIBILITY CRITERIA : AS ON 01.08.2009
(A) Educational Qualifications:
(i) Post Graduate Degree/Diploma in Business
Administration, Business Management,
Finance, Marketing, International Business,
Operations Management, Systems, HR or
(ii) M. Com or
(iii) M.A./M.Sc. in Economics or M.A./M.Sc. in
Statistics or
(iv) C.A./CWA/CS/CFA (Company Secretary)
(B) Percentage of Marks (for candidates without
any Professional qualifications):
(i) 60% minimum aggregate marks in XIIth
Standard for General/OBC Category
candidates (55% minimum aggregate marks
for SC/ST/PWD Category candidates).
AND
(ii) 55 % minimum aggregate marks in
graduation irrespective of pass course or
Honours Course for General/OBC Category
candidates (50 % minimum aggregate marks
for SC/ST/PWD Category candidates) AND
(iii) 555 minimum aggregate marks in Post
Graduation for General/OBC Category
candidates (50% minimum aggregate marks
for SC/ST/PWD Category candidates)
(C) In case of candidates having Professional
Qualification CA or CWA or CFA or CS,
candidates must have secured 60% minimum
aggregate marks in XIIth Standard. (55%
minimum aggregate marks for SC/ST/PWD/
Category Candidates)."
(iii) During his tenure as an Assistant (Accounts and Cash) at
the Respondent Bank, and being eligible/qualified both in
the educational and professional Qualifications, the
Petitioner applied for the said post of an ME and
appeared for the Written Test conducted by the
Respondent Bank on September 13, 2009.
(iv) Upon clearing the Written Test, the Petitioner was called
for Group Discussion and Interview by the Respondent
Bank vide its email dated November 25, 2009. A copy of
email dated November 25, 2009 is annexed hereto and
marked as Annexure P-7.
(v) Thereafter, vide an email dated December 14, 2009 the
Petitioner was informed by the Respondent Bank that the
Group Discussion and the Interview were rescheduled
and were now to be held on January 7, 2010 at 8.30 a.m.
A copy of email dated December 14, 2009 is annexed
hereto and marked as Annexure P-8.
(vi) The Petitioner successfully cleared the Group Discussion
and the Interview as well. Consequently, the Respondent
Bank vide Appointment Letter No. HR/RC/52/606 dated
March 18, 2010 informed the Petitioner that the Central
Recruitment and Promotion Department of the
Respondent Bank had selected the Petitioner for
appointment as a Management Executive in the
Respondent Bank at its New Delhi circle office. The said
Appointment Letter was signed by Respondent No.2 on
behalf of the Respondent Bank. The Petitioner was
called upon to join the Respondent Bank from April 5,
2010 and report to the Assistant General Manager (HR)
at its local Head Officer at 11, Sansad Marg, New Delhi
for further orders. The appointment letter further stated
that the Petitioner would be on probation for a period of
one (1 ) year from the date of appointment and the
confirmation in the Respondent Bank would be subject
to"
(a) Satisfactory reports from the Respondent Bank‟s own
sources as well as from District Authorities regarding the
Petitioner‟s character and antecedents;
(b) Satisfactory completion of the in-service training during
probation;
(c) Satisfactory performance in the evaluation tests to be
conducted by the Respondent Bank during the probation
period. Candidates who secured minimum 50% marks
(45% marks for SC/ST/PWD) in the Written Test and
minimum 50% marks (45% marks for SC/ST/PWD) in the
Group Discussion and Interview, would be confirmed as
Officers in MMGS-II. Services of the candidates who
secured less than 50% marks (45% marks for
SC/ST/PWD) would be terminated;
(d) The Candidates securing 75% or more marks in the
above process (in Written Test and in the Group
Discussion and Interview) would be considered for
placement in MMGS II on the basis of appraisal of 1
year‟s job performance after confirmation in MMGS II.
A copy of the Appointment Letter dated March 18, 2010
is annexed hereto and marked as Annexure P-9.
(vii) Subsequently, the policy of probation and confirmation in
relation to MEs who secured less than 50% marks in
their Confirmation Test, was revised by the Respondent
Bank by an E-Circular No. 996/2010-11 dated February
26, 2011 (hereinafter referred to as "Revised Policy") to
inter-alia read as follows:
(a) The probation period of MEs sefcuring less than 50%
(45% for SC/ST/PWD) were to be extended by 6(six)
months, during which period the candidates were to
appear for a Second Confirmation Test. However, all
candidates who took the Second Confirmation Test and
secured 50% or above marks, were to be confirmed only
to MMGS-II and were not to be considered placement as
MMGS-III; and
(b) The candidates who were unsuccessful in the Second
Confirmation Test were to be confirmed as Junior
Management Grades Scale - I at the starting of the scale
viz. Rs.14,500/- according to the Respondent Bank‟s
current scale of Junior Management Grade Scale - I
Officers.
A copy of the said E-Circular dated February 26, 2010 is
annexed hereto and marked as Annexure P-10.
(viii) Accordingly, all MEs including the Petitioner were given
the option to be governed either by the Old Policy or the
Revised Policy on the Confirmation Test vide a letter
dated March 1, 2011 sent by the Respondent Bank. The
Petitioner (along with other MEs) was directed to
exercise its option and return the said letter dated March
1, 2011 after counter signing the same, to the Respondent
Bank.
(ix) The Petitioner opted for the Revised Policy which
essentially was a revision which sought to remove the
option of termination in the event of a candidate securing
a lower percentage of marks in the Confirmation Test by
extension of their probation and an appearance for a
Second Confirmation Test. An unsuccessful attempt in the
Second Confirmation Test would demote the candidate to
Grade/Level Junior. Therefore, even 2 successful
attempts at the Confirmation Test would not make a
candidate eligible to be terminated from the employment
with the Respondent Bank. The Format of Option letter
dated March 1, 2011 is annexed hereto and marked as
Annexure P-11.
(x) During the entire duration of 10 (ten) months of serving
the probation period, the Petitioner underwent grueling
and extensive training and was posted in 10 (ten)
different locations in the country. During this period, the
Petitioner had to incur substantial expenditure on
boarding and lodging etc. including on rental
accommodations at these postings at his own expenses.
During the probation of 10 (ten) months, the Petitioner
was posted at the following training locations of the
Respondent Bank:
S.No. TRAINING LOCATION DURATION OF TRAINING
(I) SBLC Dehradun April 7, 2010 to April 20, 2010
(ii) SBI Narendra Nagar, Tehri April 21, 2010 to June 4, 2010
Garwal
(iii) Main Branch, Dehradun June 7, 2010 to September 4, 2010
(iv) RACPC Dehradun July 19, 2010 to August 2010
(v) Mohanpura, Haridwar September 6, 2010 to October
(vi) Paltan Bazar, Dehradun October 2010 to January 28, 2011
(vii) SMECCC, Dehradun November 12, 2010 to January 24,
(viii) RACPC Firozabad January 28, 2011 to May 13, 2011
(ix) SBLC Dehradun February 1, 2011 to February 21,
(x) State Bank Staff College, December 13, 2010 to January 15,
State Bank Institute of Rural 2011
Development, State Bank
Institute of Information &
Communication
Management
(xi) At this juncture, recourse is made to the provisions of
Rule 27.14.4 of the State Bank of India Service Rules
wherein it is stated that the Probationary
Officers/Training Officers (ME‟s) are required to submit
a Monthly Diary on prescribed format to the Branch
Manager/Regional Manager/Departmental Head during
the period of probation training who will forward it to
P& HRD Department (hereinafter referred to as the
"Monthly Diary"). The Monthly Diary so submitted by
the Officers would be carefully perused by P & HRD
Department and corrective action, wherever required,
will be intimated by them promptly in order to ensure
that the Officers receive proper training and guidance.
Further, a scrutiny of the Month Diary is made regularly
at the level of Branch manager and the P & HRD
Department. The provisions of the said Rule further
provides for submission of Confidential Reports of the
Officers at the end of completion of the training at each
of the branches and that a consolidated pre-confirmation
note to be submitted by Assistant General Manager, (P &
HRD) to the appropriate authority recommending the
confirmation or otherwise of the Officer. The
recommendations of the Assistant General Manager
should be based on the reports given by the Branch
Managers, performance of the Officers in the evaluation
tests, project report and his/her own observations during
the periodical meetings with the Probationary Officers.
Rule 27.14.4 is extracted and reproduced hereinbelow:
27.14.4 - Submission of Monthly Diary by the POs/TOs,
Confidential Report and Confirmation
While the POs/TOs are undergoing institutional
training it would not be necessary for them to
submit the periodical diaries. However, POs/TOs
will submit the monthly diary on prescribed format
to the Branch Manager/Regional
Manager/Departmental Head during the period of
on-the-job/Regional Office/Local Head Office
training who will forward it to the HR Department
at Local Head Office after furnishing the
comments thereon. The monthly diaries submitted
by the POs/TOs will be carefully perused by the
HR Department and corrective action, wherever
required, will be initiated by them promptly in
order to ensure that the POs/TOs receive proper
training and guidance. The scrutiny of the monthly
diary at the level of the branch manager and the
HR Department will have to be of a high order so
that it aids the total training of the POs/TOs.
Otherwise, the routineness observed in regard to
the diary systems under the existing training
system should altogether be avoided. The diary
should be seen and used as a tool for monitoring
the training of the POs/TOs. The formats for the
diary and BM‟s report are given at annexure 27.1.
During training, the confidential report on the
POs/TOs should be submitted at the end of
completion of the training at each of the branches
and that a consolidated pre-confirmation note will
be submitted by the Asst. General Manager (HR)
to the appropriate authority recommending the
confirmation or otherwise of the POs/TOs. His
recommendations will be based on the reports
given by the branch managers, performance of the
POs/TOs in the evaluation tests, project report and
his own observations during the periodical
meetings with the POs/TOs. It should be noted
that the POs/TOs, who do not perform well during
the training, are not confirmed as a matter of
routine.
Thus, the provisions of the SBIOSR also casts a duty on
the Respondents No. 1 to 3 to evaluate the performance
of the Officers and intimate any shortcomings in their
performance and the outcome of their trainings to the
Officers in order to ensure that the MSs receive proper
training and guidance throughout this period. The
Monthly Diary was submitted by the Petitioner from time
to time. However, the Petitioner was not allowed to keep
a copy of the Monthly Diary. The format of the Monthly
Diary is annexed hereto as Annexure P-12.
(xii) Rule 27.14.4 also provided that based on the
Monthly Diary submission and the ME‟s performance
during probation, a Confidential Report at the end of
each training of the ME is to be made. A draft format of
the Confidential Report is annexed hereto and marked as
Annexure P-13.
(xiii) Therefore, a duty is also cast upon the officers of
the Respondent Bank to evaluate the overall performance
of the MEs and satisfy themselves with regard to the
suitability of the said Officer/ME by objectively
evaluating the performance of each candidate. Only the
successfully trained candidates are selected to sit for the
Confirmation Written Exam.
(xiv) Thus, the duties of a ME in Middle Management
are not akin to the duty performed by the other officers of
the Respondent Bank. During the period of training, the
MEs are required to undergo rigorous training in
different departments and under different authorities at
various levels. The estimated cost which is incurred by
the Respondent Bank on the training of the ME is
approximately Rs. 10 lacs per person. Keeping this fact
in mind, a specific provision has been carved out under
the SBIOSR which casts a duty on the higher officers to
train, guide and advice MEs in order to ensure that the
MEs received proper training and guidance.
(xv) In addition, during the Institutional Training
provided by the Respondent Bank, an Exit Test would be
held by the Respondent Bank to confirm and assess the
level of the learning of the MEs during the training.
(xvi) Throughout the entire period of probation of 10
(ten) months, the Petitioner performed efficiently and
diligently and there was no deficiency of any type
whatsoever on the part of the Petitioner nor any lack of
character was ever pointed out either orally or in writing
by any Superior Officer of the Respondent Bank. At no
point of time, was the Petitioner intimated about any
shortcoming and the overall performance of the
Petitioner was assessed on the basis of reports given by
the Branch Managers, performance in the evaluation
tests and project reports. All these reports were
extremely positive. In fact, the ability and dedication of
the Petitioner was repeatedly appreciated by his
superiors in the Respondent Bank.
(xvii) The Petitioner performed his entire probation
period of 10 (ten) months to the full satisfaction of the
Respondent Bank. The Petitioner also appeared
successfully in all Exit Tests during his training and the
Petitioner was also awarded with a Certificate of
excellence for his outstanding performance in the SBIRD
Quiz during the period 01.01.2010 to 31.12.2010 and for
the period 01.01.2011 to 31.03.2011. Copies of
Certificates of Excellence are annexed hereto and
marked as Annexure P-14 (Colly.).
(xviii) Vide an e-circular No. CDO/P&HRD-
CM/65/2010-11 dated January 12, 2011, the Respondent
Bank, notified the ME‟s inter alia, that as per the policy
of recruitment of ME‟s, a Confirmation Test would be
held after 10 (ten) months from the date of the
appointment and advised that the Conformation Test
would be for 200 marks, as under:
Test pattern Maximum marks Time
(Minutes)
Descriptive paper 120 90
180 150
Exit test(s) at Apex Training 20 .....
Institution(s)
A copy of e-circular dated January 21, 2011 is annexed
hereto and marked as Annexure P-15.
(xix) Having successfully completed 10 (ten) months of grueling
training and efficiently and dedicatedly providing its
services to the Respondent, including frequent transfers,
Institutional Trainings and all Exit and other Tests, vide
letter No. RCPC/272 dated March 4,2011, the Petitioner
was informed by the Respondent Bank that he was
eligible to sit for the Confirmation Test (the Written
Exam for confirmation of the MEs of 2010 batch) which
would be conducted on March 6, 2011 at State Bank of
India, B-16, Sector -162, Noida, Uttar Pradesh. The
Petitioner was asked to report at the said venue by 9.00
a.m. for taking the Confirmation Test. A copy of the letter
dated March 4, 2011 addressed to the Petitioner by the
Respondent Bank, along with its English translation is
annexed hereto and marked as Annexure P-16. The said
letter also contained detailed guidelines for the written
examination/confirmation test. A list of eligible
candidates appearing for the Confirmation Test is
annexed hereto as Annexure P-17.
(xx) Accordingly, the Petitioner, alongwith other MEs, took
the Confirmation Test on March 6, 2011 and like other
MEs, was expecting to be confirmed to the grade of
MMGS- II. On or around April 4, 2011, the results of
other candidates who had appeared in the Confirmation
Test along with the Petitioner were declared. However,
the name of the Petitioner alongiwth a few others was not
found in any category of the results. The Petitioner tried
to ascertain his result but none of the officials of the
Respondent Bank provided the Petitioner with any
information regarding his result.
(xxi) Subsequently, on April 5, 2011 itself the Petitioner was
handed over by Respondent No. 3 a letter addressed to
him by the Respondent Bank inter -alia stating that
based on post examination reports purportedly furnished
by the examination conducting agency, IBPS, Respondent
No. 4, it had been concluded that the Petitioner had
allegedly resorted to unfair means/copying in the Written
Confirmation Test. However, short while later, the said
letter was taken back by the said Mr. Munish Chandana,
CM, Learning and Development of the Respondent Bank,
Respondent No. 3 herein, and was torn up/thrown away.
This completely surprised the Petitioner because to his
understanding, his conduct was completely above board
in course of the examination and neither of the
invigilators had during or after the Confirmation Test
told the Petitioner anything about any misconduct or
improper behavior, thus leaving the Petitioner extremely
shocked and puzzled.
(xxii) Thereafter, the same day, by a letter dated April 5, 2011
the Respondent Bank informed the Petitioner that the
Respondent Bank had decided to extend the probation
period of the Petitioner by 3 (three) months i.e. July 5,
2011 under Rules 16(2) of SBIOSR. No other
information or reasons for extending the probation of the
Petitioner were provided or communicated to him either
orally or in writing. A copy of letter dated April 5, 2011
is annexed hereto and marked as Annexure P-18.
(xxiii) Although extremely disappointed with the letter,
Petitioner continued to serve the Respondent Bank under
the "Extended Probation Period". During the period
from April 5, 2011 onwards, the Petitioner was not
provided with the results of his Confirmation Test or any
explanation of the reasons for this extension of
probation.
(xxiv) Instead in an utterly, arbitrarily, unilateral and illegal
manner the Respondent Bank through Respondent No. 2
terminated the services of the Petitioner vide its
termination order dated May 13, 2011 (Annexure P-1),
with effect from May 13, 2011 purportedly in terms of
Rules 16(3) of SBI Officers Rules which stated that the
Petitioner "was not deemed fit" to be confirmed in the
services of the Respondent Bank as follows:-
It is not deemed fit to confirm you in the service of the
Bank. You are, therefore, discharged from the service of
the Bank pursuant to the Provisions of Rule 16 (3) of
SBIOSR from the date of this letter.
You will be paid one month‟s salary in lieu of one month
notice period.
No reason whatsoever was stated in the said order
neither was the Petitioner given an opportunity to render
any explanation nor were any reasons given by
Respondent Bank for this.
(xxv) Aggrieved by the utterly, arbitrary and unilateral
termination order dated May 13, 2011, the Petitioner
enquired into the matter and was shocked to learn that
the Petitioner had been terminated by the Respondent
Bank along with a few other MEs from Delhi Circle of
the Respondent Bank and several other ME‟s in around
15 others circles of the Respondent Bank across the
country on the grounds of allegedly using unfair
means/resorting to copying in the Confirmation Test held
on March 6, 2011.
(xxvi) The Petitioner was subsequently also informed that the
said allegation of cheating had been concluded based on
a report furnished by the Examination Authority of the
Respondent Bank, the institute of Banking Personnel
Selection, Respondent No.4 herein. No official of the
Respondent Bank has to date, provided or is willing to
provide any of the above information to the Petitioner in
writing and in fact and consequent to the illegal
termination order dated May 13, 2011. Apart from the
letter of the Respondent Bank which was destroyed by
Respondent No. 3 as aforesaid, the Petitioner has never
been provided with any information whatsoever either
orally or in writing, regarding either his results of the
Written Confirmation Test held on March 6, 2011 or the
consequences under which the Respondent No. 4 came to
the erroneous conclusion that the Petitioner along with
few other MEs have resorted to unfair means/copying in
the Confirmation Test held on March 6, 2011.
(xxvii)Aggrieved by the said illegal, arbitrary and stigmatic
termination dated May 13, 2011, the Petitioner met with
the Officers of the All India State Bank Officers
Federation of the Respondent Bank. Subsequently, the
association of officers through its General Secretary
made a representation to the Deputy Managing Director
& CDO of the Respondent Bank on May 18, 2011, on
behalf of the terminated MEs across the country
including the Petitioner, inter-alia requesting that the
MEs be reinstated. A copy of Representation dated May
18, 2011 is annexed hereto and marked as Annexure P-
(xxviii) Thereafter, the All India State Bank Officers Federation
of the Respondent Bank also made another
representation to the Deputy Managing Director of the
Respondent on May 24, 2011, on behalf of the terminated
MEs of the Delhi Circle, including the Petitioner,
requesting the review of decision to terminate the MEs
and for reinstating them. A copy of Representation dated
May 24, 2011 is annexed hereto and marked as
Annexure P-20.
(xxix) In the meantime, the Respondent Bank had issued an E-
Circular special Letter No. CIRDO/HR/RC/10/2011-12
dated May 19, 2011 titled as "Detection of use of Unfair
Means/Copying in Objective Test by the Candidates"
wherein it cautioned the staff of the Respondent Bank
that Candidates have been reported to be copying
answers/involved in use of unfair means during the
examination process etc. A copy of the E-Circular dated
May 19, 2011 is annexed here as Annexure P-21.
(xxx) Despite the aforegoing, not having heard anything from
the Petitioner himself made a detailed representation
addressed to the Chairman of the Respondent Bank on
June 4, 2011. The said representation was sent through
Regd. A.D. However, the Petitioner has not received any
response from the Chairman. A copy of the
representation dated June 4, 2011 along with its postal
receipt is annexed hereto and marked as Annexure P-22
(Colly).
(xxxi) Subsequently the Petitioner also filed an application
under the provisions of the RTI Act requesting the
Respondent Bank to inter-alia disclose his marks
obtained in the Confirmation Test and why his result was
withheld. A copy of the RTI Application filed by the
Petitioner is annexed hereto and marked as Annexure
P-23. No response has been received to the RTI
Application so far. However, the Petitioner has received
a letter dated July 7, 2011 from Central PIO & Asst. GM
of the Respondent Bank which purports to be an "interim
reply" and states that "you will be advised in the matter
in due course." No further communication has been
received. A copy of Reply dated July 7, 2011 received by
the Petitioner is annexed hereto as Annexure P-24.
6(a) The Petitioner has been suffering the effects of the
stigmatic termination ever since he has received the
termination order which has severally impacted his life.
The severe effect of the said order can be seen as the
Petitioner is unable to even secure any kind of job in
other Banks and Financial Institutions in the last two (2)
months despite several attempts and inspite being
academically and professionally well qualified. As soon
as the Petitioner presents his termination letter to a
prospective employer, his candidature is rejected.
(b) In the facts and circumstances of the case and in view of
the sequence of events, the Petitioner has a bonafide
belief that the Respondent Bank has acted on a mere
presumption that the Petitioner may be a suspect case of
using unfair means."
8. I have heard learned counsel appearing on behalf of the parties and
perused the judgment rendered by the Apex Court.
9. The issue involved in these petitions and the issue raised before the
Apex Court in the aforesaid civil appeal is identical. The Apex Court has
discussed the same and observed as under:-
"11. The question whether termination of the service of a
temporary employee or a probationer can be treated as
punitive even though the order passed by the competent
authority does not contain any stigma has been
considered in a series of judgments. In Parshotam Lal
Dhingra v. Union of India, 1958 SCR 828, which can be
considered as an important milestone in the
development of one facet of service jurisprudence in the
country, the Constitution Bench was called upon to
decide whether the order of reversion of an official
holding a higher post in an officiating capacity could be
treated as punitive. After elaborate consideration of the
relevant provisions of the Constitution and judicial
decisions on the subject, the Constitution Bench
observed:
"...In short, if the termination of service is founded
on the right flowing from contract or the service
rules then, prima facie, the termination is
not a punishment and carries with it no evil
consequences and so Article 311 is not attracted.
But even if the Government has, by contract
or under the rules, the right to terminate the
employment without going through the
procedure prescribed for inflicting the
punishment of dismissal or removal or reduction
in rank, the Government may, nevertheless,
choose to punish the servant and if the
termination of service is sought to be founded
on misconduct, negligence, inefficiency or other
disqualification, then it is a punishment and the
requirements of Article 311 must be complied
with...."
10. Finally, the Apex Court has decided as under:-
"33. The proposition laid down in none of the five
judgments relied upon by the learned counsel for the
appellants is of any assistance to their cause, which were
decided on their own facts. We may also add that the
abstract proposition laid down in paragraph 29 of
the judgment in Pavanendra Narayan Verma v. Sanjay
Gandhi PGI of Medical Sciences (supra) is not only
contrary to the Constitution Bench judgment in Samsher
Singh v. State of Punjab (supra), but large number of
other judgments - State of Bihar v. Shiva Bhikshuk
Mishra (supra), Gujarat Steel Tubes Ltd. v. Gujarat
Steel Tubes Mazdoor Sabha (supra) and Anoop Jaiswal
v. Government of India (supra) to which reference has
been made by us and to which attention of the two-
Judge Bench does not appear to have been drawn.
Therefore, the said proposition must be read as confined
to the facts of that case and cannot be relied upon for
taking the view that a simple order of termination of
service can never be declared as punitive even though
it may be founded on serious allegation of
misconduct or misdemeanor on the part of the employee.
34. In the result, the appeals are dismissed. The
appellants shall reinstate the private respondents within
15 days of the production of copy of this judgment
before respondent No.3 and give them all
consequential benefits like pay, allowances, etc. within
next one month. However, it is made clear that this
judgment shall not preclude the competent authority
from taking fresh decision in the matter of
confirmation of the private respondents after giving
them effective opportunity of hearing against the
allegation of use of unfair means in the test held on
27.2.2011."
11. In view of the above discussion, I am of the considered opinion that
since the issue raised in the instant petitions has already been decided by the
Apex Court in the aforesaid Civil Appeal Nos. 7841-42/2012 vide its
judgment rendered on 03.12.2012, therefore, the present petitions raising
identical issues stand disposed of accordingly.
12. I further make it clear that the directions issued by the Apex Court in
para 34 of the judgment mentioned above, are applicable in the cases in
hand.
13. It is clarified that the respondents shall comply with this order within
a period of four weeks from the date of receipt of the copy of the judgment.
14. No further orders are required.
15. Consequently, all these petitions are disposed of.
CM No.10682/2011 (for stay)
With the disposal of the petition itself, the instant application has
become infructuous. The same is disposed of accordingly.
A copy of this order be given dasti to the learned counsel for the
parties.
SURESH KAIT, J.
DECEMBER 18, 2012
sb
