Umed Singh Dahiya vs Delhi State Coop. Bank Ltd. And ...
2013 Latest Caselaw 1342 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+           WP(C) No.4163/1992 & WP(C) No.396/1993


%                                                       March 19, 2013


WP(C) No.4163/1992
      M.R. BHARDWAJ & ANR.                                    ..... Petitioners
                   Through:            Mr. Sunil Malhotra with
                                       Mr. Suraj Agarwal, Advs.


                        versus


      DELHI STATE COOP. BANK LTD. AND ORS.            ..... Respondents

Through: Mr. Anand Yadav, Adv. for R-1.

Ms. Ishita Chakraborti, Adv. for Ms. Sujata Kashyap, Adv. for R-2.

                                 and
WP(C) No.396/1993

      UMED SINGH DAHIYA                                       ..... Petitioner
                   Through:            Mr. Sunil Malhotra with
                                       Mr. Suraj Agarwal, Advs.


                        versus


      DELHI STATE COOP. BANK LTD. AND ORS.            ..... Respondents
                    Through: Mr. Anand Yadav, Adv. for R-1.
                             Ms. Ishita Chakraborti, Adv. for
                             Ms. Sujata Kashyap, Adv. for R-2.


 CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?                            Yes


VALMIKI J. MEHTA, J (ORAL)
WP(C) No.4163/1992

1. This writ petition is filed by two petitioners. Petitioner No.1 is Mr.

M.R.Bhardwaj and petitioner No.2 is Mrs. Kanak Rastogi. The case as put forth

in the writ petition is that the petitioners have wrongly been denied promotion

from the post of a clerk/supervisor to the post of accounts officer in the list of

promoted officials which was issued on 17.11.1992.

2. The relevant rule of respondent No.1-Bank with respect to

promotion from a clerk/supervisor to an accounts officer is Rule 1.8 of the Rules

and which reads 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."

3. A reference to the aforesaid Rule shows that the promotion is on

the basis of seniority-cum-merit. There are two further requirements in addition

to the requirement of the seniority. The first requirement is that a candidate

must have three continuous ACRs of the grade "good". The second requirement

is of a suitability report required to be given of the General Manger. That this

Rule 1.8 is the relevant rule is the admitted position before me of both the

parties.

4. Learned counsel for the petitioners has drawn my attention to the

seniority list issued in the year 1976, and which shows that the respondents No.

4 to 7 were definitely juniors to the petitioner No.1 inasmuch as respondents No.

4 to 7 have been appointed in January, 1975, whereas the petitioner No.1 was

appointed in the year 1974. I however note that so far as the respondents No. 8

to 11 are concerned, there is no clarity as to what are the dates of appointments

of these respondents. There is no document on record which clearly specifies

the dates of appointments of respondents No. 8 to 11. Though counsel for the

petitioners has sought to place reliance upon the seniority list of 1976 to show

that these respondents were placed below the petitioner No.2, however, the list

is of the year 1976 and we have to see position much much later as of

November, 1992 when the order was passed which effected promotions. This

factual position of dates of appointments is specifically required because even

the name of the petitioner No.1 is not found in the list of 1976 inasmuch as he

was terminated from services, and thereafter reinstated by an order passed in the

year 1980, and pursuant to which order dated 15.12.1980 the petitioner No.1 is

entitled to claim his date of joining as 19.12.1974. Thus, I cannot take the list of

1976 as final with respect to inter se seniority among the petitioners and the

respondents No. 8 to 11. Once it is possible that even two of the four

respondents No. 8 to 11 were senior to the petitioners, petitioners would not be

entitled to reliefs as claimed in this writ petition because such respondents

would be appointed to the post to which petitioners, and more particularly the

petitioner No.2 claims appointment by promotion. In any case, this issue of

inter se seniority for claiming of the reliefs in this writ petition, will not be an

aspect for deciding the writ petition, inasmuch as, this writ petition is being

decided on the principle of „no pay for no work‟ and of the petitioners failing to

file the relevant record that they had grading "good" for three consecutive years

prior to November, 1992.

5. It is also an important aspect to note that it is not disputed that the

petitioners were granted promotions to the post of accounts officers on

18.9.1997. The dispute is therefore only with respect to the claim of promotion

benefits for the period from November, 1992 to September, 1997.

6. The Supreme Court in the judgments reported as Union of India vs.

B.M.Jha, 2007 (11) SCC 632, Union of India vs. Tarsen Lal & Ors., 2006 (10)

SCC 145 and A.K.Soumini vs. State Bank of Travancore & Anr., 2003 (7) SCC

238 has held that ordinarily on account of a notional promotion no back wages

can be granted because of the principle of „no work no pay‟.

7. Learned counsel for the petitioners placed reliance upon the

judgment of the Supreme Court in the case of State of Kerala & Ors. vs.

E.K.Bhaskaran Pillai, 2007 (6) SCC 524 to argue the proposition that once the

petitioners are wrongly denied promotion, the petitioners should be entitled to

the benefits of promotion inasmuch as there is no thumb rule of „no work no

pay‟ and as so held in this judgment.

8. In my opinion, the following factors persuaded me to apply the

ratio of the judgments in the cases of B.M.Jha (supra), Tarsen Lal (supra) and

A.K.Soumini (supra) for denying the relief to the petitioners of back wages and

for not applying the judgment in the case of State of Kerala (supra) cited on

behalf of the petitioner:-

i) There is no clarity on record as to whether petitioners in fact did

have three continuous ACRs of the grade "good" for three years prior to

17.11.1992. Of course, record in this regard had to be produced by the

respondents and with respect to which there are orders of this Court which

are not complied with, however, the fact of the matter is that there is nothing

clear-cut on record that in fact petitioners had three ACRs with the grade

„good‟ for three consecutive years prior to 17.11.1992. I cannot give the

benefit of adverse presumption in a case such as the present because I note

that in the entire writ petition, petitioners have not referred to Rule 1.8 and as

to how the petitioners satisfy the twin requirements of having three

consecutive ACRs with the grade "good" and as to a suitability certificate

issued by the General Manager of the respondent. Petitioners have therefore

failed to plead and establish a cause of action and show as to how the

ingredients of the relevant Rule 1.8, which entitle the petitioners to

promotion stand complied with.

ii) The petitioners did make reference to the relevant Rule 1.8 first

time in its application filed subsequently being CM No.7769/1992, however,

even in this application I do not find categorical averments of petitioners

satisfying the twin requirements of Rule 1.8.

iii) Besides the aspect of petitioners not complying with the twin

requirements of three ACRs with grade "good" and the suitability certificate

by the General Manager, even the aspect of seniority with respect to date of

appointments is not too clear, and in such uncertain circumstances it is not

possible to arrive at clear-cut findings as to what was the position of seniority

as in November, 1992 when the impugned promotions were made.

9. In view of the aforesaid discussion, the following conclusions

emerge:

I) There is no document on record and nor are the requisite averments

made by the petitioners that they satisfy the requirements of having three

consecutive ACRs with the grading "good" for three years prior to

November, 1992, and also that the Manager of the respondent gave the

necessary suitability certificate.

II) A list of 1976 cannot be taken as the final list with respect to

seniority much later after one and a half decade as on November, 1992

because even as per the case of the petitioners, there were various changes

which were made in the list of 1976, including qua the petitioner No.1 by an

order dated 15.12.1980.

III) Also, petitioners themselves have filed as Annexure-C to the writ

petition an order dated 18.8.1992 with respect to eight persons, including

some of the respondents, again showing that such persons were retrenched

and again re-appointed and thereby, it can be said that this Court cannot

safely take a seniority list of 1976 as final list with respect to dates of

appointments.

IV) The petitioners have admittedly not performed their duties on the

higher posts, and the promotions if were to be granted would have to be only

notional promotions, and therefore, the ordinary rule of „no work no pay‟

would apply as per the judgments of the Supreme Court in the cases of

B.M.Jha (supra), Tarsen Lal (supra) and A.K.Soumini (supra). No such

equities have been pointed out to me to enable the petitioners to take benefit

of the ratio of the judgment in the case of State of Kerala (supra), not only

because of uncertainty as to the final list of seniority which existed in

November, 1992 (and that seniority list of 1976 cannot be taken as a basis for

the position prevailing in 1992 because petitioners themselves have shown

that this list is changed by the orders dated 15.12.1980 and 18.8.1992.) but

also because of there being no documentary proof on record of petitioners

having three consecutive ACRs of "good" grade and a suitability certificate

by the General Manager.

V) The petitioners have already been granted promotions and the issue

really is only qua limited claim of deemed promotion for four years and ten

months, and for which period admittedly petitioners have not worked in the

higher posts.

10. In view of the above, I do not find any merit in the petition which is

accordingly dismissed, leaving the parties to bear their own costs.

WP(C) No.396/1993

1. In the present writ petition, the petitioner claims the same relief as

claimed by the petitioner in WP(C) No.4163/1992. Petitioner claims that the

petitioner has been wrongly denied promotion to the post of accounts officer and

the promotion list dated 17.11.1992 wrongly ignores the petitioner. The

petitioner claims seniority to respondents No. 3 to 18, who were said to be

retrenched from the services and only reappointed in the year 1980 whereas the

petitioner continues to be in uninterrupted services from 1970. Petitioner also

claims that he satisfies the requirements of promotion in terms of the extant Rule

1.8.

2. On behalf of the respondent No.1, it is pleaded that the respondents

No. 3 to 18 were retrenched from services however on retrenchment being set

aside they were appointed by giving them seniority from their earlier dates of

appointment. It is argued that the writ petition is not maintainable as a

promotion is not matter of right and petitioner does not comply with the

requirements of promotion.

3. It is undisputed that Rule 1.8 deals with the qualifications for

promotion. There are three requirements of seniority-cum-merit, three

consecutive ACRs showing the grade "good" as on the date for consideration for

promotion and a suitability certificate issued by the General Manager of the

respondent No.1. Though the petitioner has generally pleaded compliance of

Rule 1.8, however, there is no specific averment in the writ petition that

petitioner has got three consecutive ACRs with the grading "good". Once this

averment is missing, the petitioner cannot be said to have complied with the

qualification for being promoted. There is also no documentary proof filed in

this regard. Also, the petitioner claims seniority only because respondents No. 3

to 18 were retrenched and thereafter appointed in 1980, however, the respondent

No.1 has stated on affidavit that these respondents No. 3 to 18 were given

seniority from an earlier date i.e the date from which they were originally

appointed and hence these respondents are senior to the petitioner. I may note

that the petitioner No.1 in WP(C) No.4163/1992 was similarly retrenched from

services and by an order dated 18.8.1992 he was put back in services from the

original date of his appointment. Though no similar order is found in this file

with respect to respondents No. 3 to 18, however, the order dated 18.8.1992 in

WP(C) No.4163/1992 qua the petitioner No.1 is an indication that retrenched

employees were given re-appointment from their original date of appointment,

and once the respondent No.1 has stated so on oath, I am not inclined to

disbelieve the same as the only seniority list filed on behalf of the petitioner is a

seniority list of 1976, and which seniority list cannot be taken as final for the

reasons given while disposing of WP(C) No.4163/1992, so as to determine the

seniority as on November, 1992.

4. In view of the above, there is no merit in the petition since neither

the petitioner has categorically established his seniority as against respondents

No. 3 to 18 and nor the requisite three consecutive grades "good" for being

given promotion as claimed has been established on record.

5. Writ petition is accordingly dismissed, leaving the parties to bear

their own costs.

                                                  VALMIKI J. MEHTA, J
MARCH        19, 2013
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