Delhi High Court
Rajinder Kumar vs Punjab National Bank And Anr on 8 January, 2013
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2888/2012
% Judgment reserved on: 7th November, 2012
Judgment delivered on: 8th January, 2013
RAJINDER KUMAR ..... Petitioner
Through: Mr. Ashok Bhalla, Advocate.
Versus
PUNJAB NATIONAL BANK AND ANR ..... Respondents
Through: Mr. Dhruv Mehta, Senior
Advocate with Mr. Yashraj
Singh Deora, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the instant petition, the petitioner is seeking the relief as under:-
"Issue a writ of certiorari or any other appropriate writ, order
or direction in the nature of certiorari quashing the
Clarificatory guidelines issued by the Respondent Bank for
promotion process, promotion from MMG/S-III to SMG/S-IV
for the year 2012-2013 vide P.A.D. Circular No. 88 dated
8.5.2012 with further directions to the Respondent Bank to
consider the Petitioner for ensuing promotion process from
MMG/S-III to SMG/S-IV for the year 2012-2013."
2. It is pertinent to mention here that on the first date of hearing i.e. on
15.05.2012, Mr. Dhruv Mehta, ld. Sr. Counsel made his appearance on
behalf of the respondent Bank and submitted that the petitioner would be
called for interview. He also submitted that till the disposal of the instant
petition, one vacancy shall be kept reserved for the petitioner and his
seniority shall be subject to the final outcome of the petition.
3. Accordingly, this Court passed an order in CM. No. 6225 of 2012 on
the said date that one vacancy shall be kept reserved for petitioner and result
of interview of petitioner shall be kept in sealed cover, till further order.
4. The respondent Bank, thereafter, filed an application vide
no. 9390/2012 whereby sought clarification of the interim order dated
15.05.2012 for the reasons as under: -
"That the process of selection for promotion from MMGS-III to
SMGS-IV, as prescribed in the promotion policy (pg 20 to 22
of Paper Book), involves assessment of eligible candidates and
allotment of marks for (a) Performance (b) Group Discussion
(C) Interview and (d) Branch Experience.
That, however, it is most respectfully submitted that having
regard to what is submitted herein in above, as the last
interviews for promotion to SMGS-IV were held on 15.05.2012
i.e. the date when this Hon‟ble Court passed an interim order in
the present petition, at present, the Respondent Bank is unable
to invite the petitioner herein for Group Discussion with other
eligible candidates, which is one of the parameter for
assessment for consideration for promotion to SMGS-IV."
5. Upon receiving the aforesaid application, this Court decided to
dispose of the instant petition, instead of passing any further order.
6. Facts of the case, in brief, are that the petitioner is presently working
as Senior Manager in MMG/S-III in Punjab National Bank, Head Office at
New Delhi. He had joined the respondent Bank in March 1980 as a Clerk-
cum-Cashier. He was promoted as officer in Junior Management
Grade/Scale-I (JMG/S-I) in September 1986. Thereafter, he was promoted
as MMG/S-II in the year 1999 and in the year 2006, he was promoted as
MMG/S-III.
7. The case of the petitioner is that he has meritorious service record and
was accorded marks in his P.A.F. for the years 2005-2006 onwards as
under:-
S.No. Review Overall Marks
Period Rating
8. It is further stated that in the year 2008-2009, the Reporting Officer
had given 95 marks, however, deliberately with malafide intention for
oblique reasons was downgraded by the Reviewing Authority. The
petitioner reserved his right to challenge the illegal downgrading of his PAF
for the year 2008-2009 in accordance with law.
9. However, notwithstanding the above position, the petitioner was even
otherwise eligible for promotion process for promotion from MMG/S-III to
SMG/S-IV for the year 2012-2013, in terms of instant promotion policy.
10. Mr. Ashok Bhalla, learned counsel for the petitioner submitted that
the service conditions of officers in Punjab National Bank are governed by
the Regulations framed by the Board of Directors in exercise of powers
conferred by Section 19 read with Sub-section 26 of Section 12 of the
Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970
in consultation with the Reserve Bank of India and with the previous
sanction of the Central Government. Regulation 17 of PNB Officer‟s
Services Regulations, 1979 lays down that the promotions to all grades of
officers in the Bank shall be made in accordance with the policy laid down
by the Board from time to time having regard to the guidelines of the
Government, if any.
11. The Board of Directors of the respondent Bank having regard to the
guidelines of the Government of India, Requirements of the Bank and also
deliberations held with the representatives of AIPNBOA in small committee
meetings, in Board Meeting held on 21.03.2012 had approved the revised
promotion policy for officers in Punjab National Bank. Further, the Board
of Directors in its meeting held on 20.04.2012 had also approved certain
amendments in the above promotion policy operative w.e.f. 01.04.2012,
which read as under:-
"THE TITLE AND COMMENCEMENT:
iii) This policy will be operative w.e.f.01.04.2012 i.e. in respect of
the promotion process for the year 2012-13 and onwards.
ix) 'Financial Year' means the period commencing from the 1st
day of April of a year and ending with the 31 st day of March of
the next year.
4. SELECTION PROCESS FOR PROMOTION FROM JMG
SCALE-I TO MMG SCLAE-II
a. Channel-I (Normal/Seniority Channel)
40% of the vacancies in MMG Scale-II shall be filled up through this
Channel. Under this channel, the officers fulfilling the following
eligibility criteria shall be eligible to apply:-
Illustration :
For example the marks obtained during the previous five years are as
under:-
First Year PAF Marks - 69
2nd year PAF Marks - 56
3rd year PAF Marks - 85
4th year PAF Marks - 62
5th year PAF Marks - 78
Total 05 years PAF Marks - 350
xxx xxx xxx
The selection of candidates shall be done on the basis of the following
parameters:-
PARAMETERS MAXIMUM REMARKS
MARKS
Written Test (Part 60/70* Marks (*) Minimum
„A‟ & „B‟ of 30 for qualifying
marks each, Part Technical/Specialist marks shall
„B‟ would be for 40 Officers be 40% in
Marks for individual
Technical/Specialist paper and
Officers). 50% in
aggregate
for General
candidates
and 30% &
40%
respectively
for SC/ST
candidates.
Performance 60 Marks Minimum
75% Marks
in PAF of
each of the
preceding 3
years.
5. SELECTION PROCESS FOR MMG SCALE-II TO MMG
SCALE-III
The vacancies in MMG Scale-III, shall be filled up by
promotion from MMG Scale-II through 2 channels, described
below:-
a) Channel-I (Normal/Seniority Channel)
40% of the vacancies in MMG Scale-III shall be filled up through
this Channel. Under this channel, the officers fulfilling the
following eligibility criteria shall be eligible to apply:-
i. The candidates who have completed 5 years of service in MMG
Scale-II and have qualified the On-Line Computer Literacy and
CBS Awareness Test.
ii. They must have completed three years of service in Rural/Semi
Urban Areas including two years of continuous service in rural
areas in JMG Scale I subject to relaxations mentioned under Point
No.10.10. This stipulation will however not be applicable in case
of Technical/Specialist Officers.
iii. The Officers, other than Technical/Specialist Officers, who
have put in more than two years of service in rural areas will get an
advantage of further relaxation of 50% weightage in minimum
experience for each additional completed year of service while
assessing their eligibility as per para 5 a(i) above. This relaxation
shall however not be available to the candidates who have availed
the relaxation at the time of promotion from JMG Scale-I to MMG
Scale-II. Further, the relaxation shall be admissible to those
candidates only who complete the additional period of rural
posting in MMG Scale-II.
The candidates from amongst the applicants, the number of
candidates to be called for the interview in order of inter-se
seniority shall be determined in terms of the procedure given in
Clause-II „Number of candidates to be considered for promotion‟.
The selection of candidates shall be done on the basis of the
following parameters:
PARAMETERS MAXIMUM MARKS
Performance 60 Marks
Interview 30 Marks/ 40*
(*) For Technical/Specialist
Officers
Branch Experience Break - up:-
Marks/ Branch
Incumbent Experience • Branch experience: 1
Marks/Marks for posting mark for each completed
in the hard area, as year of service in branch
identified by the Central during last five years (Max.
government, (Not 5 marks).
applicable in case of • Incumbent Experience/
Technical/ Specialist posting in the hard area: 1
Officers) additional mark for each
completed year of service
as Incumbent Incharge of a
branch/ posting in the hard
area, as identified by the
Central Government, during
last five years. (Max. 5
additional marks) However
the total marks for Branch
Experience and Incumbent
Experience/ Hard Area
Posting shall not be more
than 10.
Performance (60 Marks) : The marks for the performance of the
5 preceding years would be reckoned. The maximum marks for
PAF
provided in the promotion policy multiplied by total marks
obtained in the 5 relevant PAFs divided by 500.
The weightage for PAF parameters shall be assigned as illustrated
in Para 4(a) herein before.
INTERVIEW:
There will be no minimum qualifying marks in the Interview.
An Officer who is not selected through this Channel shall not be
disqualified for consideration under Channel-II (Merit/Fast Track
Channel) mentioned below.
b. Channel-II (Merit/Fast Track Channel)
60% of the vacancies in MMG Scale-III shall be filled up through the
Channel. Under this channel, the officers fulfilling the following
eligibility criteria shall be eligible to apply:-
i. The candidates who have completed 3 years of service in MMG
Scale-II and have qualified the on-line computer literacy and
CBS Awareness Test.
ii They must have secured at least 75% marks in PAFs of each of
the preceding 3 years and
iii They must have completed 3 years of service in Rural/Semi
Urban Areas including two years of continuous service in rural
areas in JMG Scale 1 subject to relaxations mentioned under
Point No. 10.10. This stipulation will however not be
applicable in case of Technical/Specialist Officers.
The selection of candidates shall be done on the basis of the following
parameters :-
PARAMETERS MAXIMUM REMARKS
MARKS
Written Test (Part 60/70* Marks (*) Minimum
„A‟ & „B‟ of 30 for qualifying marks
marks each, Part Technical/Special shall be 40% in
„B‟ would be for ist Officers individual paper
40 Marks for and 50% in
Technical/Special aggregate for
ist Officers). General
candidates and
30% and 40%
respectively for
SC/ST
candidates.
Performance 60 Marks Minimum 75%
Marks in PAF of
each of the
preceding
3years.
Branch 10 Marks 10 Marks-
experience
marks/Branch Break up:-
incumbent *Branch
experience experience: 1
marks/marks for mark for each
posting in the completed year
hard area, as of service in
identified by the branch during
Central last five years
Government. (Max. 5 marks)
*Incumbent
(not applicable in experience/posti
case of ng in the hard
ist Officers) additional mark
for each
completed year
of service as
incumbent
incharge of a
branch/posting
in the hard area,
as identified by
the Central
Government,
during last 5
years. (Max. 5
additional
marks)
However, the
total marks for
branch
experience and
incumbent
experience
/hard area
posting shall not
be more than 10.
Though the selection process for promotion of the officers
mentioned above is not under challenge, however, it is relevant to
discuss for the adjudication of the issue in question.
6. SELECTION PROCESS FOR MMG SCALE-III TO SMG
SCALE-IV
The vacancies in SMG Scale-IV shall be filled up by promotion
from MMG Scale-III through merit channel only, as described
below:-
- All the vacancies in SMG Scale-IV shall be filled up through
this channel. Under this channel, the candidates who have
completed 3 years of service in MMG Scale-III and have
qualified the on-line computer literacy and CBS Awareness
Test shall be eligible to apply.
- From amongst the applicants, the number of candidates to
be called for the group discussion and interview in order of
inter-se seniority shall be determined in terms of the
procedure given in Clause-11 „Number of candidates to be
considered for promotion‟.
- The selection of candidates shall be done on the basis of the
following parameters :-
PARAMETERS MAXIMUM MARKS REMARKS
Performance 60 Marks
Group 20 Marks
Discussion
Interview 60/70* Marks (*) Minimum
for qualifying marks
Technical/Specialis in the interview
t Officers shall be 30%
Branch 10 Marks 10 Marks-
experience Break up:-
marks/Branc *Branch
h incumbent experience: 1
experience mark for each
marks/marks completed year of
for posting in service in branch
the hard area, during last five
as identified years (Max. 5
by the Central marks)
Government. *Incumbent
experience/postin
(not g in the hard
applicable in area: 1 additional
case of mark for each
Technical/ completed year of
Specialist service as
Officers) incumbent
incharge of a
branch/posting in
the hard area, as
identified by the
Central
Government,
during last 5
years. (Max. 5
additional marks)
However, the total
marks for branch
experience and
incumbent
experience/hard
area posting shall
not be more than
Performance (60 Marks) : The marks for the performance of the
preceding years would be reckoned. The maximum marks for PAF
provided in the promotion policy multiplied by total marks obtained in
the 5 relevant PAFs divided by 500."
12. He further submitted that the aforesaid promotion policy, as was
approved by the Board of Directors in its meeting held on 21.03.2012 and on
20.04.2012, was circulated by the General Manager, Personnel
Administration Division (Selection Cell) Head Office, New Delhi vide
Personnel Administration Division (PAD) Circular No. 83 dated 20.04.2012,
wherein specifically mentioned as under:-
"5. Further, a reference has been made by the Bank to
Ministry of Finance seeking certain exemptions on the
Government guidelines incorporated in the enclosed promotion
policy and on receipt of communication from the Government
in the matter, the same will be incorporated in the promotion
policy."
13. Based upon the aforesaid Promotion Policy, the Deputy General
Manager Personnel Administration Division (Selection Cell) Head Office,
New Delhi initiated promotion process for officers JMG/S-I to MMG/S-II,
MMG/S-II to MMG/S-III and MMG/S-III to SMG/S-IV for year 2012-2013
by issuing a Circular No. 84 dated 20.04.2012, relevant portion of the same
reads as under:-
"
SI Promotion Particulars
03. MMG Scale III to Merit Channel:- All
SMG Scale IV officers who have
completed 3 years of
service in MMG Scale-III
as on 01.04.2012 shall be
eligible to apply.
*The Board in its meeting dated 21.03.2012 has
relaxed the eligibility criteria of length of service by one year
for these promotions in the selections to be made for the
financial year 2012-13.
** Bank has taken up with Ministry of Finance that
the stipulation of required marks in PAFs may be relaxed to
average 60% in preceding 3 years but the clearance is yet
awaited. On receipt of clearance, the stipulation will be
taken care of in the promotion policy accordingly. In the
meantime the candidates having average 60% marks and
above in PAFs in last 3 years (i.e. in 2008-09, 2009-10 and
2010-11) may also submit online application under
Merit/Fast Track channel for promotion to MMG Scale II
and III. But their eligibility shall be subject to receipt of
exemption, as sought for, from Ministry of Finance. In
case no exemption is granted by MOF, their applications
are liable to be rejected."
14. Learned counsel for the petitioner further submitted that the petitioner
being eligible for promotion from MMG/S-III to SMG/S-IV had submitted
online application which was accepted by the respondent Bank vide
acknowledgement No. OA-IV-2012/03/MC/38339/86.
15. Thereafter, the General Manager Personnel Administration Division
(Selection Cell) Head Office, New Delhi issued Circular No. 88 dated
08.05.2012 issuing clarificatory guidelines, the extract of which is annexed
as Annexure P-4. The same reads as under:-
"For Promotion from MMG Scale III to SMG Scale IV, from
amongst the applications, the candidates who have secured at
least 75% marks in PAFs of each of the last three years will
be eligible for consideration for promotion to SMG Scale IV
subject to their eligibility otherwise.
Accordingly, from amongst the candidates who have applied
for promotion to SMG Scale IV in response to PAD Circular
No. 84 dated 20.4.2012, only those candidates shall be
considered for promotion who have secured at least 75%
marks in PAFs of each of the last three i.e. 2008-09, 2009-10
and 2010-11 in line with the guidelines from Ministry of
Finance".
16. The aforesaid circular was released on the website of the Punjab
National Bank on 09.05.2012, whereas the interviews for promotion to
MMG/S-III to SMG/S-IV were scheduled to be held on 14.05.2012 and
15.05.2012. However, due to said illegal guidelines, the petitioner became
ineligible for promotion from MMG/S-III to SMG/S-IV for the year 2012-
2013, whereas his juniors were being considered for promotion.
17. Learned counsel for the petitioner submitted that the clarificatory
guidelines issued by the respondent Bank for promotion process from
MMG/S-III to SMG/S-IV for the year 2012-2013 were wholly illegal,
contrary to the instant policy and could not be made applicable for
promotion for the aforesaid category. It has been wrongly clarified and
applied to the officers seeking promotion from MMG/S-III to SMG/S-IV,
whereas the same is applicable only to the officers below the aforesaid
category i.e. up to promotion to MMG/S-III only.
18. He further submitted that under the garb of the clarification, the
respondent Bank has inserted in circular No. 88 dated 08.05.2012 the
following clauses:-
"2. In terms of the said promotion policy, applications were
invited from eligible officers upto SMG Scale III for
consideration for promotion upto SMG Scale IV vide PAD
circular No. 84 dated 20.04.2012.
3. We have received communications dated 03.05.2012 from
the Department of Financial Services (DFS) Ministry of
Finance, Government of India in which it has inter alia been
clarified that the requirement of minimum 75% marks in
APAR in each of the year under consideration would be
relaxed to the extent of 60% marks in APAR in each of the
only those scales where passing of an examination by IBPS
(Institute of Banking Personnel Selection) is mandatory for
promotion. This relaxation has, however, been allowed as
one time measure for the promotion process for the year
2012-13.
4. In view of the above guidelines dated 03.05.2012 of
Ministry of Finance, the matter was placed before the Board
in its meeting held on 8th May, 2012 and accordingly, it is
advised as under:-
i. the candidates in JMG Scale I and MMG Scale II who have
applied in response to PAD Circular No. 84 dated
20.04.2012 for promotion and had secured at least 60%
marks in PAFs of each of the year under consideration i.e.
2009-10 and 2010-11 will be eligible for consideration in the
promotion process for the year 2012-13 under Merit/fast
track channel, subject to their eligibility otherwise.
ii. For promotion from MMG Scale II to SMG Scale IV, from
amongst the applications, the candidates who have secured
at least 75% marks in PAFs of each of the last three years
will be eligible for consideration for promotion to SMG Scale
IV subject to their eligibility criteria.
Accordingly, from amongst the candidates who have applied
for promotion to SMG Scale IV in response to PAD Circular
NO. 84 dated 20.04.2012 only those candidates will be
considered for promotion who have secured at least 75%
marks in PAFs of each of the last three years i.e. 2008-09,
2009-10 and 2010-11 in line with the guidelines from
Ministry of Finance."
19. Learned counsel for the petitioner has clarified that the aforesaid
clarification dated 08.05.2012 is contrary to the promotion policy. He
further clarified that there are two channels of promotion, i.e. first the Fast
Track, where written test is required, and second the Normal Channel, where
no written test is required for the promotion from Scale-II to Scale-IV. If the
aforesaid clarification is applicable, then the whole policy is changed and
applicable to every Scale, even for the promotion for the officers from Scale-
IV to Scale-V and upwards.
20. To support his arguments, learned counsel for the petitioner has relied
upon a case of State of Andhra Pradesh & Ors. Vs. Sreenivasa Rao & Ors.,
(1983) 3 SCC 285, wherein the Supreme Court has held as under:-
"9. Having heard the counsel for the parties, we find no
force in either of the two contentions. Under the old rules a
penal had to be prepared every year in September.
Accordingly, a panel should have been prepared in the year
1976 and transfer or promotion to that panel. In that event the
petitioners in the two representation petitions who ranked
higher than respondents 3 to 15 would not have been deprived
of their right of being considered for promotion. The vacancies
which occurred prior to the amended rules would be governed
by the old rules and not by the amended rules. It is admitted by
counsel for both the parties that henceforth promotion to the
post of Sub-Registrar Grade II will be according to the new
rules on the zonal basis and not on the State-wide bases and,
therefore, there was no question of challenging the new rules.
But the question of filling the vacancies that occurred prior to
the amended rules. We have not the slightest doubt that the
posts which fell vacant prior to the amended rules would be
governed by the old rules and not by the new rules."
21. He also relied upon a case of The State of Punjab Vs. Madan Singh
& Ors., AIR 1972 SC 1429, wherein the Supreme Court has held as under:-
"4. For the reasons we have already mentioned in Civil
Appeals Nos. 1639 to 1941 of 1968, 31, 1279 and 2227 of 1969,
we agree with the High Court that the executive instructions
issued by the State Government are void as they amount to an
alteration of the rules prescribed under S. 241 of the
Government of India Act."
22. Also relied upon a case of Feroz Ahmad Vs. Delhi Development
Authority & Ors., (2006) 10 SCC 399, wherein the Supreme Court has
observed as under:-
"7. Mr. Ashwani Kumar, learned Counsel appearing for the
respondent on the other hand, would submit that Respondent
No. 1 being a statutory authority, the matters relating to
recruitment and promotion of the employees are governed by
the rules and regulations framed by it. Such rules and
regulations having been framed by Respondent No. 1 and
having been upheld by this Court in Roop Chand Adlakha, it is
not open to Appellant to question the validity thereof. It was
pointed out that Appellant had been put in the pay-scale of Rs.
10,000-325-15,200 under the Assured Career Promotion
Scheme with effect from 12.8.2000 (under the second
upgradation) and in that view of the matter, CPWD Rules relied
upon by him are not applicable. According to the learned
Counsel, for the purpose of promotion, the recruitment rules
which are applicable in the instant case provide for quota of
50% from Junior Engineers having a degree with 3 years of
service and 50% from Junior Engineers having 8 years of
service on regular scale. Seniority list, it was urged, was made
in terms of the said rules.
xxx xxx xxx
13. The question raised by Appellant would, however,
depend upon the validity and/ or applicability of the rules. If no
rules have been framed in accordance with law, the earlier
rules validly framed shall prevail. A statutory rule, it is trite,
cannot be supplemented by an executive order."
23. Learned counsel for the petitioner also relied upon a case of State of
Haryana Vs. Mahender Singh & Ors., (2007) 13 SCC 606, wherein the
Supreme Court has observed as under:-
"39. It is now well settled that any guidelines which do not
have any statutory flavour are merely advisory in nature. They
cannot have the force of a statute. They are subservient to the
legislative Act and the statutory rules. [See Maharao Sahib Shri
Bhim Singhji v. Union of India,(1981) 1 SCC 166, J.R.
Raghupathy v. State of A.P.(1988) 4 SCC 364 and Narendra
Kumar Maheshwari v. Union of India, 1990 (Supp) SCC 440."
24. On the other hand, Mr. Dhruv Mehta, learned Senior Advocate
appearing for the respondent Bank submitted that the Department of
Financial Services (DFS), Ministry of Finance, Government of India vide
their letter dated 14.03.2012 issued guidelines for promotion to Public
Sector Banks in supersession of the earlier guidelines issued vide their letter
dated 05.12.2011. The guidelines dated 14.03.2012 provide that minimum
75% marks in APAR for each of the year of service would be required for
being eligible for promotion under Merit Channel/Fast Track Channel.
25. Based upon the guidelines dated 14.03.2012 received from the
Government of India, the promotion policy of the officers was placed before
the Board of Directors of the Bank. The Board in its meeting held on
21.03.2012 approved the promotion policy subject to the modification that
the vacancies in SMG/Scale-IV to be filled up by MMG/Scale-III through
merit channel and without the selection parameter of written test.
26. He further submitted that the Regulation 17(1) of the said Officers
Service Regulations, 1979 inter alia provides as under:-
"Promotions to all grades of officers in the Bank shall be made
in accordance with the policy laid down by the Board from time
to time having regard to the guidelines of the Government, if
any."
27. Learned counsel referred the communication dated 14.03.2012 issued
by the Department of Financial Services, Ministry of Finance, wherein the
guidelines for promotion in Public Sector Banks states as under:-
" The Government of India had, vide circular of even no
dated 5.12.2011, issued revised guidelines for eligibility and
methods of promotions in Public Sector Banks while revising
the guidelines issued earlier vide circular No. 4/5/6/84-IR dated
23.06.1986 and 14/18.09.1987 on the subject.
xxx xxx xxx
3. After consideration, the Government, in supersession of
the earlier guidelines issued vide circular of even number dated
5.12.2011, now issues these guidelines for promotion of officers
in Public Sector Banks, while providing relaxations for
prospective implementation in provisions requiring involving
mandatory experience.
4. The channel of promotion and minimum experience
requirement at various levels shall be as follows:
Scale Promotion Minimum Maximum Minimum
Channel Experience Experience length of
requirement relaxation services
(in years) by Board (in years)
(in years)
xxx xxx xxx
III to IV Merit/Fast Track 3 1 NA
Channel
5. Cut Off Date for Eligibility
iii. Minimum 75% marks in APAR for each of the years of
service required for eligibility for promotion would be required
under merit channel/fast track."
28. Learned senior counsel for the respondent Bank further submitted that
the aforesaid guidelines were issued to all the Banks.
29. He has referred to promotion policies for services of the officers,
which were issued in terms of Regulation 17 of PNB (Officer‟s) Service
Regulations, 1979 and having regard to the guidelines of the Government of
India, the Board of Directors lays down the following policy for promotion
of officers in the Bank:-
"v) „Guidelines of the Government‟ shall mean guidelines
issued and/or may be issued by the Government and shall
include the guidelines issued by the Government vide its letter
No.F.No.4/11/1/2011-IR dated 14.03.2012 in supersession of
the earlier guidelines issued by the Government in this regard."
30. Learned senior counsel for the respondent Bank submitted that with
regard to the circular No. 83 issued on 20.04.2012 by the General Manager
of PNB to all the officers, the relevant portion of the same is as under:-
"2. The Government of India, Ministry of Finance, Banking
Division, had issued guidelines in July, 1979, in accordance
with the above Regulations. Subsequent to these guidelines a
number of Government guidelines pertaining to promotion of
officers from one scale / grade to another have been received
including guidelines vide letter No. F No. 4/11/1/2011-IR dated
14.03.2012 to ensure uniformity in Officers‟ cadre promotions
in all the Public Sector Banks. It has been advised that the
guidelines given vide letter dated 14.03.2012 shall be
operationalised after adoption by the respective Board of the
Banks."
31. Learned senior counsel has referred the communication dated May 3,
2012 issued to CEO‟s of all Public Sector Banks by the Department of
Financial Services, Ministry of Finance. The relevant portion of which reads
as under:-
"2. In view of the difficulties being experienced by PSBs
regarding non- availability of the requisite number of officers
in zone for consideration, due to different profile of officers in
Banks, APAR marks, cut-off date, etc, it has been decided that
the following relaxations could be allowed by the Bank, as one
time measure, for the promotion process for the year 2012-13:-
(v) The requirement of minimum 75% marks in APAR in each of
the year under consideration would be relaxed to the extent of
60% marks APAR in each year for only those scales where
passing of an examination by IBPS is mandatory for
promotion."
32. Learned senior counsel for the respondent Bank has referred to the
promotion policy, wherein stated as under:-
b. Channel-II (Merit/Fast Track Channel)
60% of the vacancies in MMG Scale-III shall be filled up through the
Channel. Under this channel, the officers fulfilling the following
eligibility criteria shall be eligible to apply:-
i. The candidates who have completed 3 years of service in MMG
Scale-II and have qualified the on-line computer literacy and
CBS Awareness Test.
ii They much have secured at least 75% marks in PAFs of each of
the preceding 3 years and
iii They must have completed 3 years of service in Rural/Semi
Urban Areas including two years of continuous service in rural
areas in JMG Scale 1 subject to relaxations mentioned under
Point No. 10.10. This stipulation will however not be
applicable in case of Technical/Specialist Officers."
6. SELECTION PROCESS FOR MMG SCALE-III TO SMG
SCALE-IV
The vacancies in SMG Scale-IV shall be filled up by promotion
from MMG Scale-III through merit channel only, as described
below:-
- All the vacancies in SMG Scale-IV shall be filled up through
this channel. Under this channel, the candidates who have
completed 3 years of service in MMG Scale-III and have
qualified the on-line computer literacy and CBS Awareness
Test shall be eligible to apply.
- From amongst the applicants, the number of candidates to
be called for the group discussion and interview in order of
inter-se seniority shall be determined in terms of the
procedure given in Clause-11 „Number of candidates to be
considered for promotion‟.
- The selection of candidates shall be done on the basis of the
following parameters :-
PARAMETERS MAXIMUM MARKS REMARKS
Performance 60 Marks
Group 20 Marks
Discussion
Interview 60/70* Marks (*) Minimum
for qualifying marks
Technical/Specialist in the interview
Officers shall be 30%
Branch 10 Marks 10 Marks-
experience Break up:-
marks/Branch *Branch
incumbent experience: 1
experience mark for each
marks/marks completed year of
for posting in service in branch
the hard area, during last five
as identified by years (Max. 5
the Central marks)
Government. *Incumbent
experience/posting
(not in the hard area:
applicable in 1 additional mark
case of for each completed
Technical/ year of service as
Specialist incumbent
Officers) incharge of a
branch/posting in
the hard area, as
identified by the
Central
Government,
during last 5
years. (Max. 5
additional marks)
However, the total
marks for branch
experience and
incumbent
experience/hard
area posting shall
not be more than
Performance (60 Marks) : The marks for the performance of the
preceding years would be reckoned. The maximum marks for PAF
provided in the promotion policy multiplied by total marks obtained in
the 5 relevant PAFs divided by 500."
33. Learned counsel further submitted that for promotion of officers from
Scale-III to Scale-IV no written test is prescribed, therefore, 75% marks are
applicable. He submitted that the petitioner has impugned the circular No.
88 issued on 08.05.2012, wherein it is clarified as under:-
3. We have received communications dated 03.05.2012 from
the Department of Financial Services (DFS) Ministry of
Finance, Government of India in which it has inter alia been
clarified that the requirement of minimum 75% marks in
APAR in each of the year under consideration would be
relaxed to the extent of 60% marks in APAR in each of the
only those scales where passing of an examination by IBPS
(Institute of Banking Personnel Selection) is mandatory for
promotion. This relaxation has, however, been allowed as
one time measure for the promotion process for the year
2012-13.
4. In view of the above guidelines dated 03.05.2012 of
Ministry of Finance, the matter was placed before the Board
in its meeting held on 8th May, 2012 and accordingly, it is
advised as under:-
i. the candidates in JMG Scale I and MMG Scale II who have
applied in response to PAD Circular No. 84 dated
20.04.2012 for promotion and had secured at least 60%
marks in PAFs of each of the year under consideration i.e.
2009-10 and 2010-11 will be eligible for consideration in the
promotion process for the year 2012-13 under Merit/fast
track channel, subject to their eligibility otherwise.
ii. For promotion from MMG Scale II to SMG Scale IV, from
amongst the applications, the candidates who have secured
at least 75% marks in PAFs of each of the last three years
will be eligible for consideration for promotion to SMG Scale
IV subject to their eligibility criteria.
34. Learned senior counsel submitted that for promotion, the material
period is 2008-2011. Though, in the year 2008-2009 petitioner had very
good grading with 70% marks, but as per the policy, he is not eligible for
promotion.
35. To strengthen his arguments, learned senior counsel for the
respondent Bank has relied upon a case of Andhra Bank Vs. B.
Satyanarayana & Ors., (2004) 2 SCC 657, wherein the Supreme Court has
observed as under:-
"7. It is not in dispute that, pursuant to or in furtherance of
Sub-section (2) of Section 12 read with Section 19 of the Act, in
consultation with the Reserve Bank of India and upon obtaining
prior permission therefore, the Board of Directors of the
appellant-Bank framed the Regulations known as 'Andhra Bank
(Officers') Service Regulations 1982'. Regulation 17 of the said
Regulations reads thus:
"17. Promotions:1. Promotions to all Grades of officers in the
Bank shall be made in accordance with the policy laid down by
the Board, from time to time, having regard to the guidelines of
the Government, if any.
2. For the avoidance of doubts, it is clarified that this
regulation shall also apply to promotions of any category of
employees to the Junior Management Grade."
8. It appears that the Central Government had also issued
guidelines purported to be in terms of Regulation 17 of the
Regulations.
9. It was not the contention of the Respondent Nos. 1 and 2
before the High Court or before us that the Board of Directors
by reason of the regulation making power could not have been
delegated with the power to lay down a policy for grant of
promotion to the officers working in the bank. From a bare
perusal of Regulation 17, it would be evident that sufficient
safeguards have been provided for therein inasmuch as while
laying down such policy, the Board must have regard to the
guidelines issued by the Central Government. It is further not in
doubt or dispute that such guidelines had been provided by the
Government in terms of the aforementioned regulation.
13. Regulation 17 of the Regulation, in our opinion, does not
confer any unguided, uncanalised and arbitrary power as the
same was issued in conformity with the guidelines issued by the
Central Government. The requirement to lay down the
regulation before both Houses of Parliament also provides for
sufficient safeguard. For making a regulation, the requirements
of Section 19 of the Act were required to be complied with but
the procedure laid down therefore are wholly irrelevant for the
purpose of formulating the policy decision in terms of
Regulation 17 aforementioned. The High Court in its impugned
judgment failed to notice the said distinction and, thus, based
its decision wholly on a wrong premise."
36. I have heard ld. Counsels for the parties. It is emerged that petitioner
is presently working as Senior Manager in MMG/S-III in Punjab National
Bank, New Delhi. He has meritorious service record since 2006 to 2011.
The disciplinary authority and reviewing authority have given him overall
rating „Excellent‟ in four years i.e. from 2005-2007 and 2009-2011 and
„Outstanding‟ in the year 2007-2008. However, he has been very good
grading in the year 2008-2009 for which he has sought liberty to challenge
before the appropriate forum.
37. The case of the petitioner is that even otherwise, he is eligible for
promotion process for the year 2012-2013 for promotion to SMG/S-IV from
MMG/S-III as per the instant promotion policy which has been approved by
the Board of Directors in the meeting dated 20.04.2012. On perusal of the
said policy, it is revealed that there are two channels of promotion i.e.
normal / seniority channel and another is merit / fast track channel. The
said channel is applicable only for promotion from Scale-I to Scale-II and
Scale-II to Scale-III only. As far as the promotion in question is concerned
i.e. from MMG Scale-III to SMG Scale-IV, that is through merit channel
only.
38. As per the instant policy it has been approved by the Board of
Directors that all the vacancies in SMG Scale-IV shall be filled up through
this channel only. Under this channel, the candidates who have completed 3
years of service in MMG Scale-III and have qualified the online computer
literacy and CBS Awareness Test shall be eligible to apply.
39. Pursuant thereto, the petitioner being eligible for promotion process
submitted online application, which was accepted by the respondent Bank
vide acknowledgement no. No.OA-IV-2012/03/MC/38339/86.
40. It is relevant to clarify that for promotion from Scale-I to Scale-II and
Scale-II to Scale-III, where the examination was also the condition and the
said condition is applicable to the Scales mentioned above only.
41. It is further pertinent to mention here that the Board of Directors of
the respondent Bank having regard to the guidelines of the Government of
India, requirements of the Bank and also deliberations held with the
representatives of AIPNBOA in small committee meetings, in Board
Meeting held on 21.03.2012 had approved the instant revised promotion
policy for officers in the respondent Bank. Further, the Board of Directors
in its meeting held on 20.04.2012 had also approved certain amendments in
the above promotion policy operative w.e.f. 01.04.2012. However, there is
no change in the revised policy for promotion from Scale-III to Scale-IV and
from Scale-IV to Scale-V.
42. Based upon the aforesaid promotion policy, the Deputy General
Manager, Personnel Administration Division (Selection Cell) Head Office,
New Delhi initiated promotion process for officers JMG/S-I to MMG/S-II,
MMG/S-II to MMG/S-III and MMG/S-III to SMG/S-IV for the year 2012-
2013. As per the selection process, for promotion from MMG/S-III to
SMG/S-IV, all officers who have completed 3 years of service in MMG
Scale-III as on 01.04.2012 were eligible. However, the Board in its meeting
dated 21.03.2012 relaxed the eligibility criteria of length of service by one
year for these promotions in the selections to be made for the financial
year 2012-13. Thereafter, the General Manager, Personnel Administration
Division (Selection Cell) Head Office, New Delhi issued Circular No. 88
dated 08.05.2012 by issuing clarificatory guidelines whereby it has clarified
that amongst the candidates who have applied for promotion to SMG Scale-
IV in response to PAD Circular No. 84 dated 20.42012, only those
candidates shall be considered for promotion who have secured at least 75%
marks in PAFs of each of the last three i.e. 2008-09, 2009-10 and 2010-11 in
line with the guidelines from Ministry of Finance. The petitioner is
aggrieved with this clarificatory guidelines whereby he has been made
ineligible for promotion in question.
43. As per the policy of the respondent Bank, as has been approved by the
Board of Directors, i.e. the competent authority, the petitioner is eligible.
Accordingly, his application was accepted by the respondent Bank. By
changing the said policy, after initiating the process, is bad in law as has
been decided in catena of Judgments by the High Court and the Apex Court
of India.
44. The respondent under the garb of clarification made the requirement
of minimum 75% marks in APAR in each of the year under consideration
would be relaxed to the extent of 60% marks in APAR in only those scales
where passing of an examination by IBPS (Institute of Banking Personnel
Selection) has been made mandatory for promotion.
45. It has further made that amongst the candidates who had applied for
promotion to SMG Scale-IV in response to PAD Circular No. 84 dated
20.04.2012, only those candidates will be considered for promotion, who
have secured at least 75% marks PAFs of each of the last 3 years as
mentioned above.
46. If this Court rely upon the clarification made by the respondents that
would be contrary to the promotion policy. There are two channels of
promotion, i.e. one Fast-Track wherein written test is required and second
the normal channel where no written test is required for promotion from
Scale-II to Scale-IV. If it is applicable, then the whole policy stands
changed and applicable to every Scale even for the promotion of Officers
from Scale-IV to Scale-V.
47. I note, the aforesaid change has not made applicable on Officers from
Scale-IV to Scale-V and only made applicable to Scale-III to Scale-IV,
whereas the only channel i.e. through merit channel applicable on the
promotion for both the scales mentioned above.
48. Law has been well settled by the Apex Court way back in 1983 in
Sriniwas Rao (Supra) that the vacancies which accrued prior to the
amended rules would be governed by the old rules and not by the amended
rules.
49. In the case in hand the respondents have changed the policy under the
garb of clarification. There is no doubt that the post which fell vacant prior
to the amended rules would be governed by the old rules and not by the new
rules.
50. I am conscious about the settled law that if no rules have been framed
in accordance with the law, the earlier rules validly framed shall prevail. A
statutory rule cannot be supplemented by an executive order as happened in
the present case.
51. Law has also been well settled in the case of Mahender Singh
(Supra) that any guidelines which do not have any statutory flavour are
merely advisory in nature. They cannot have the force of a statute.
52. Moreover, as per the promotion policy, there was no requirement of
minimum 75% marks in PAF in each of the preceding 3 years for becoming
eligible for promotion in question. The requirement of 75% marks is
applicable only from Scale-I to Scale-II and Scale-II to Scale-III for which
the condition of channel-2 i.e. merit / fast-track channel for which written
test has also to be conducted.
53. The guidelines issued vide Circular no. 88 dated 08.05.2012 cannot
supersede the promotion policy which was laid down by the Board of
Directors in terms of Regulation 17 of the PNB Officers Regulations, 1979.
Even otherwise, the condition of 75% marks in PAFs for preceding 3 years
in respect of promotion imposed by way of clarificatory guidelines cannot be
restricted only to MMG/S-III and would have been operative, if any, for all
promotions of MMG/S-III to TEG/S-VII.
54. In view of the above discussion and settled law, the impugned circular
no. 88 dated 08.05.2012 has no statutory value and cannot prevail over the
instant policy. Therefore, the same is hereby quashed as it is not applicable
for promotion from MMG Scale-III to SMG-Scale-IV. Consequently,
petitioner is eligible for the promotion process from MMG/S-III to SMG/S-
IV for the year 2012-2013.
55. Vide this Court‟s order dated 15.05.2012 one vacancy was directed to
be reserved for the petitioner. Accordingly, respondent Bank shall take steps
and allow the petitioner in the promotion process within four weeks from the
receipt of the judgment.
56. I here make it clear that petitioner shall be entitled for all
consequential benefits including seniority.
57. Instant petition is allowed on the above terms with no order as to
costs.
CM. No. 6225/2012 (Stay)
CM. No. 9390/2012 (Clarifications)
In view of the above, instant applications also become infructuous and
disposed of as such.
SURESH KAIT, J
JANUARY 08, 2013
Jg
