Delhi High Court
M.R. Bhardwaj & Anr. vs The Delhi State Cooperative Bank ... on 4 July, 2013
Author: Badar Durrez Justice
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.07.2013
+ LPA 384/2013
M.R. BHARDWAJ & ANR. ..... Appellants
versus
THE DELHI STATE COOPERATIVE BANK LTD. & ORS.
..... Respondents
Advocates who appeared in this case:
For the Appellants : Mr Sunil Malhotra
For the Respondents : Mr Anand Yadav
CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED, THE ACTING
CHIEF JUSTICE
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
BADAR DURREZ AHMED, ACJ (ORAL)
CM No.9006/2013 (condonation of delay)
We have heard the learned counsel for the petitioner as well as the
learned counsel for respondent No.1, who is the main contesting
respondent. The delay of three days is condoned.
The application stands disposed of.
LPA 384/2013
1. This appeal is directed against the judgment dated 19.03.2013 passed
by a learned Single Judge of this Court in W.P.(C) No.4163/1992. The first
appellant before us was the petitioner No.1 in that writ petition. The
petitioner No. 2 in that writ petition has chosen not to file any appeal.
2. The second appellant was the petitioner in W.P.(C)396/1993 which
was also disposed of by the common judgment 19.03.2013. We shall be
referring to the facts of the case of the appellant no. 1 which are similar to
those of the appellant no. 2.
3. The only point raised by the appellants in the said writ petitions was
that they were wrongly denied promotion from the post of Clerk/Supervisor
to the post of Accounts Officer. The complaint of the appellants was that
their names did not figure in the list of promotees which was issued on
17.11.1992. The appellants were working with the Delhi State Cooperative
Bank.
4. The relevant service Rules of the bank pertaining to promotions were
as under:-
"PROMOTION:-
Rule 1.8(a).
Subject to provision contained is rule 7.A(vii), all posts
falling vacant shall be filled in through PROMOTION from
the next below category. The promotion shall be made only
against a vacant post or a newly created post. The promotion
shall be made by Establishment Sub-Committee after
considering the following:
ELIGIBILITY :-
i. The promotions will be made on the basis of Seniority-
cum-merit.
ii. At least 3 years service must have been put in lower
cadre.
iii. He must have received good confidential repro for
atleast 3 consecutive years about his work and conduct
from his incharge.
iv. A suitability report of the General Manager will be
required in each case."
5. The learned counsel for the appellants urged before us that one of the
conditions for promotion apart from seniority was that the candidate should
have received three confidential reports for atleast three consecutive years
which indicated that his work was "good". According to the learned
counsel for the appellants, the respondents despite repeated directions from
the learned Single Judge had not produced the record which would have, in
the words of the learned counsel, shown as to whether the appellant No.1
had received the good ACRs for the three years immediately prior to
consideration for promotion i.e., in respect of 1989-90, 1990-91 & 1991-92.
6. On going through the impugned judgment, we find that the learned
Single Judge has considered this aspect but has arrived at the conclusion
that from the record available there is no clarity with regard to whether the
appellant No.1 had or had not satisfied this condition with regard to the
ACRs. The learned Single Judge, however, went on the principle of 'no
work no pay' and followed the decisions of the Supreme Court in the case
of Union of India v. B.M. Jha: 2007 (11) SCC 632, Union of India v.
Tarsen Lal & Ors.: 2006 (10) SCC 145 and A.K. Soumini v. State Bank of
Travancore & Anr.: 2003 (7) SCC 238 and distinguished the judgement of
the Supreme Court in the case of State of Kerala & Ors. v. E.K. Bhaskaran
Pillai: 2007 (6) SCC 524, which had been relied upon by the appellant
herein.
7. We may also point out at this stage that the appellant No.1 had
subsequently been appointed as Accounts Officer. The present appeal
pertains only to the benefits for the intervening period that is approximately
4 years and 9 months. The learned Single Judge also observed that apart
from 'no work no pay' principle, it was also not clear as to whether the said
appellant could at all have been promoted to the post of Accounts Officer at
the relevant time.
8. After having heard the learned counsel for the appellants and the
learned counsel for the respondent/bank who appeared on advance notice,
we are of the view that since Rule 1.8 of the relevant Rules have not been
challenged, they needed to be complied with before the appellants could
claim promotion at the relevant time. Apart from the condition of the
ACRs, there was another important condition and that was the requirement
of the suitability report from the General Manager. It is apparent that such
suitability report was not there in the case of the appellant No.1 at the
relevant time. That being the case, even if the other conditions were
satisfied the appellant could not have been promoted to the post of the
Accounts Officer at the relevant point of time. Therefore, de-hors the
condition of the ACRs and the issue of 'no work no pay' and the distinction
drawn by the learned Single Judge insofar as the decision of the Supreme
Court in State of Kerala v. E.K. Bhaskaran Pillai (supra) was concerned,
this factor in itself clinches the issue against the appellant. The fact being
that there was no suitability report from the General Manager and in the
absence thereof, the appellants could not have been promoted to the post of
Accounts Officer at that point of time.
9. In view of the foregoing, we do not find any merit in the appeal, the
same is dismissed. There shall be no order as to costs.
BADAR DURREZ AHMED, ACJ
VIBHU BAKHRU, J
JULY 04, 2013
MK
