Delhi High Court
S K Kardam vs Punjab National Bank & Anr on 6 February, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 18.01.2019
Pronounced on: 06.02.2019
+ W.P.(C) 7325/2018 & CM APPL Nos. 49313/2018 and 27941/2018
S K KARDAM ..... Petitioner
Through Mr. Raman Gandhi and Ms. Harsha
Sharma, Advs. along with petitioner
in person.
versus
PUNJAB NATIONAL BANK & ANR ..... Respondents
Through Mr. Rajesh Kumar Gautam, Adv.
with Ms.Khushboo Aggarwal and
Mr.Debayan Banerjee, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
1. Vide the present petition, the petitioner seeks direction thereby
quashing the Performance Appraisal (PAF) Reports for the year 2010-11
and 2015-16 and the Promotion Process and the list of Promoted Candidates
w.e.f. 25.04.2015 and 27.05.2016 and subsequent promotions out of the list
of empanelled executives and also the list of wait listed executives and
further promotions in the year 2017-18 and 2018-19, regarding promotions
from Senior Management Scale IV to Scale V, selected and promoted by
officers of the respondents. He further seeks direction thereby commanding
the respondents to promote the petitioner in Senior Management Scale V,
with all consequential benefits from retrospective effect from 25.04.2015.
He also seeks direction thereby commanding the respondents to promote the
petitioner in Senior Management Scale V, with all consequential benefits.
2. The brief facts of the case are that the petitioner was initially
appointed as Clerk-cum-Cashier on 12.02.1981, promoted to the post of
Scale I Officer on 17.10.1988, Scale II Officer on 20.08.1998, Scale III
Officer on 13.07.2004 and to Scale IV Officer on 30.08.2010. The petitioner
has outstanding record of service to his credit throughout the service of 36
years. As per the promotion policy circular no.252 dated 11.03.2015
(Annexure P-5), the promotion policy for 2014-15 was allowed to be
continued for the promotion process for the year 2015-16 and onwards,
according to which selection process from Scale IV to Scale V was
proceeded. There shall be only one channel of promotion of officers from
SMG Scale IV to SMG Scale V, namely Merit Channel. Accordingly,
minimum experience-3 years of service in Scale IV, with minimum length
of service 12 years and in addition, the experience as Branch Head at least 3
years in any Scale is required for the promotion from Scale IV to Scale V.
3. Selection parameters for the promotion process 2015-16 were as
under:
30%)
i. From amongst the applicants, the number of candidates to be called
for group discussion and interview shall be determined in terms of the
procedure given in clause 11 of the Policy. The eligible candidates
will be called in the order of seniority.
ii. The marks for performance of the 5 preceding years would be
reckoned. The weightage for Performance Appraisal Form (PAF)
parameters shall be assigned as illustrated in para 4(a) in the policy.
4. As the petitioner was called for the Written Test, Interview and Group
Discussion, the relevance of Clause 11 of the policy, becomes immaterial in
the present petition. However, as per promotion policy circulated vide
circular No.741 dated 30.03.2016 (Annexure P-6) promotion from Scale IV
to Scale V for the promotion process2016-17 also required the average of
marks obtained as per Performance Appraisal Form--Annual Performance
Appraisal Report (PAF-APAR) for the previous 5 years, as a contributory
factor for promotion. As per policy, vacancies in SMG Scale V were to be
filled up by promotion from SMG-IV, through merit channel only. The
marks under various selection parameters were as under:
ANNUAL PERFORMANCE APPRAISAL REPORT(APAR) 50
Minimum Qualifying Marks For Written Test 30%
Minimum Qualifying Marks For Interview 50%
5. Accordingly, the petitioner appeared in the written test, interview and
group discussion for the process of 2015-16.
6. Learned counsel appearing on behalf of the petitioner submits that the
focus shifts to Annual Performance Appraisal Report (APAR) for the last
five years i.e. from 2009- to 2014 for the promotion process 2015-16 and
2010 to 2015 for the promotion process 2016-17, however, the marks
allotted for these years were never intimated to the petitioner as per the
judgment of Hon'ble Supreme Court in the case of Dev Dutt vs. Union of
India: AIR 2008 SC 2513, due to which the petitioner has been deprived of
his right to represent and right to improve performance for future in
violation of Article 14 of the Constitution. The promotion process for
promotion from Scale IV to Scale V for the year 2015-16 was held and the
list of executives approved for promotion w.e.f. 25.04.2015 along with the
list of empanelled and waitlisted executives selected and promoted by
officers of the respondents were declared (Annexure P-3).
7. Learned counsel further submitted that the Performance Appraisal
Form--Annual Performance Appraisal Report (PAF-APAR) score of the
petitioner, for the previous five years for promotion in the year 2015, as
obtained through RTI (Annexure P-9) were as under:
Average out of 100 marks
Average out of 50 marks
8. It is further submitted that the reasons for awarding an abnormally
low score of 65 in 2010-11 in extreme contrast to average score of all other
years and also performance for the related year, are known only to the
Reporting/Reviewing/Accepting Authorities. But, the fact remains that the
petitioner was never intimated about his marks depriving of his right to
represent and right to improve performance for future.
9. It is further submitted that the score of 65 in 2010-11 rated by
respondents is not only very low but is in total mismatch to the performance
of the petitioner and the appreciations showered on him during the period.
Even this is against the own comments of the reporting authority, recorded
in the same Performance Appraisal Form--Annual Performance Appraisal
Report (PAF-APAR). A critical analysis of the Performance Appraisal Form
will divulge that the marks awarded by the reporting authority and
confirmed by the reviewing and accepting authorities have no relevance to
the petitioner and the appreciations showered on the petitioner during the
period 2010-11. Besides, the general guidelines and principles to be
observed on the part of the aforesaid authorities have been intentionally over
ruled to ensure that the Will of the Prejudiced Reporting Authority reigns
supreme. Had it been so, there was no need for creating the multi tiers of
assessing the performance. The marks allotted by the reporting authority
and ritually followed and repeated by reviewing authority as obtained
through RTI (Annexure P-1) under each head are as under:
a. 4.1 to 4.3 Deposits and other Business Areas Credit, 12 of 20
Foreign Exchange and Recovery Performance/NPA
Management.
b. 4.4 Financial management 6 of 10
c. 4.5 Customer Service 6 of 10
d. 4.6 House-keeping 8 of 10
Total 32 of 50
10. Learned counsel for the petitioner further submitted that this is against
the directions to the Reporting/Reviewing/Accepting Authorities while
assessing and assigning marks under this parameter due consideration
should be given to the customers and business profile, NPA mix and
availability of staff and other peculiar and special feature.
11. However, the authorities mentioned above were biased to the
petitioner for the reasons stated as under:
"13. The Business Figures of the Branch for the Period
2010-2011, (Annexure P-1) have been quoted by the
Appraisee under part ii of the PAF (Annexure P-1) as:
Growth in Savings Deposit 4.02%
Growth in Current Deposit 656.55%
Growth in Term Deposits 28.10%
Growth in Aggregate Deposits 70.19%
Mobilisation of low cost Deposit Growth 55.79%
in Advances
Reduction in NPA 63.00%
Financial Efficiency:
Revenue 256%
Total income 258%
Interest income 83%
Non-interest income 227%
Profit 236.07%
Business per employee increased from 21.52 to 50.43 Cr.
House keeping Up to date in all respects. Keeping in view
the Banking Industry Growth of not more than 20% for
overall Business, the above growth figures are
phenomenal and when coupled with the comments of the
Reporting Authority, as to how and why, so, low marks
have been awarded only in this year and as to why the
Reviewing Authority has simply endorsed the Marks of
the Reporting Authority, as appears apparently, instead
of judicially reviewing the same. Why the Reviewing
Authority's mind did not stir at such a low score, in view
of the Performance Record given in the same
Performance Appraisal Form (PAF). The marks given by
the Reporting and Reviewing Authority have been given
without giving any consideration to the Guidelines
framed for the same and just to keep them reminded of
the same. The overlooking, if any, has to be and should be
deemed as intentional.
14. Similar is the case with 33 marks out of 50 on
page 14 and total 65 of 100 Marks given on page 16 of
the Performance Appraisal Form-2010-11 (PAF)
(Annexure P-1).
15. A close scrutiny of the Marks given by the Field
General Manager (FGM), Sh. A. K. VERMA, would
reveal that the Marks have not been given by him in his
own handwriting and appear to have been written by the
Reporting Authority. Besides, the same have not even
been signed by the Reviewing Authority. Still further, no
marks have been given by the Reviewing Authority at the
place meant for him, clearly evidencing that the exercise
has not been undertaken as per Guidelines or has been
undertaken by the Reporting Authority on behalf of the
Reviewing Authority. This is not only against the
principles of natural justice that each appraising
Authority has to assess and award marks independently
but also smacks of bias, prejudice and collusion against
the Petitioner of the Reporting and Reviewing Authority.
All this has been done intentionally, throwing into
background all the norms for the Purpose and playing
with the career of the Petitioner, who has performed
excellently for the Bank just because he is a Schedule
Caste (SC) Candidate and the Reporting Authority is
biased against the Category (Annexure P-1).
16. With the Growth shown in para 13, pertaining
Deposits and other Business and Financial efficiency,
coupled with up-to-date House Keeping, the Marks
awarded do not bear any nexus/rational with the
Performance under these Parameters and so are based
on certain other hidden agenda instead of the Guidelines
meant for the purpose. The Performance of this
magnitude cannot be achieved without providing
excellent service to the Customers, highlighting that the
Marks even under that Head "House Keeping" have not
been correctly awarded (Annexure P-1)."
12. Learned counsel for the petitioner submits that in view of above, the
present petition deserves to be allowed.
13. On the other hand, learned counsel appearing on behalf of the
respondents Bank submits that the petitioner has challenged his non
selection to the post of SMG Scale V in the selection process which was
held in the year 2015-16, wherein the petitioner had participated and the
present petition has been filed only after he was declared unsuccessful in the
promotion process. Thus as per the settled law in the case of K.A.
Nagamani vs. Indian Airlines & Ors.: (2009) 5 SCC 515 whereby the
Supreme Court has held that once the candidate participated in the process
without any demur or protest cannot be allowed to turn round and question
the very same process having failed to qualify for the promotion. Learned
counsel submits that thus the present petition deserves to be dismissed on
this ground alone.
14. It is further submitted that the petitioner has raised grievance with
regard to the assessment of his performance for the year 2010-11 after delay
of about 7 years. Therefore such delay accrued third party rights because
meanwhile, other employees were promoted. The petitioner himself has
admitted that he was aware in the year 2014 with regard to awarding of 65
marks in the performance appraisal in the year 2010-11, thus, there is no
merit in the present petition. He further submitted that though the petitioner
has prayed for quashing of the promotion process and the list of promoted
candidates w.e.f. 25.04.2015 and 27.05.2016, however, the petitioner has not
impleaded such candidates who have been promoted to the post of SMG
Scale V w.e.f. 25.04.2015 and 27.05.2016 in the present petition.
15. It is further submitted that the service conditions of the officers, like
the petitioner herein, are governed by Punjab National Bank (Officers')
Service Regulation, 1979 which are statutory in nature having been framed
by the Board of Directors of respondent bank in consultation with the
Reserve Bank of India and with the previous sanction of Central
Government in exercise of its powers under section 19 of Banking
Companies (A & T of Undertakings) Act, 1970.
16. That Regulation 17(1) of the 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."
17. The promotion policy, in terms of above provisions and which is in
issue in the present petition, had been framed by the Board of Directors of
the respondent Bank in the meeting held on 29.03.2016 and has been
circulated vide circular No.741 dated 30.03.2016. Thus, it is settled law that
an employee only has a right to be considered for promotion from one grade/
cadre to another grade/cadre and has no right to be promoted. In the present
case, the petitioner has admittedly been considered for promotion in the
process of selection held for the year 2015-16, however, as the marks
obtained (total marks obtained were 73.80) by him in the different
parameters prescribed in the promotion policy were less than the total marks
(75.70) obtained by the last candidate who was promoted to SMG Scale V in
the selection process which was held in the year 2015-16.
18. Learned counsel further submitted that as per policy guidelines
applicable in case of officers in Scale IV and above for the year 2010-11, the
officers were informed about their rating awarded by the Moderation
Committee only in case rating is 'below average'. In the present case, the
rating of the petitioner for the year 2010-11 was not 'below average' hence,
the same was not communicated to him.
19. It is further submitted that the marks for performance have been given
to the petitioner based on his performance for the said year by Appraising
Authority and Reviewing Authority. The fact that different tier has been
provided, same would not mean that the higher authority cannot accept the
assessment made by the lower authority or the higher authority must
necessarily make changes (up or down) in the assessment done by the lower
authority. The authorities have taken into consideration all aspect and not
only the guidelines of the respondent bank for promotion. Thus, the present
petition deserves to be dismissed.
20. I have heard learned counsel for the parties in length and perused the
material on record.
21. The Hon'ble Supreme Court in case of Dev Dutt (supra) has
observed that every entry in the ACR, of a public servant must be
communicated within a reasonable period, whether it is poor, fair, average,
good or very good entry. This is because non-communication of such an
entry may adversely affect the employee in two ways:
i. Had the entry been communicated to him he would know about
the assessment of his work and conduct by his superiors, which
would enable him to improve his work in future,
ii. He would have an opportunity of making a representation against
the entry, if he feels it is unjustified, and pray for its upgradation.
22. In view of above, it is further observed that communication of entries
and giving opportunity to represent against it is particularly important on
higher posts which are in paramedical structure where often the principle of
elimination is followed in selection for promotion, and even a single entry
can destroy the career of an officer which has otherwise been outstanding
throughout. This often results in grave injustice and heart burning, and may
shatter the morale of many good officers who are superseded due to this
arbitrariness, while officers of inferior merit may be promoted. While
framing opinion, every entry must be communicated within reasonable time.
23. The petitioner has made allegation of bias against the respondents for
the reason that the petitioner belongs to Scheduled Caste category. In
addition to performance of 2010 and 2011, for the year 2016, the officer of
the respondent instead of giving specific marks to the petitioner have put an
alphabet (Y) against the remarks 'very good' which has a rank of 75-89
marks. Thus, this is a casual manner of assessment of the petitioner for the
year 2016 against the range of 75 to 89 marks and if fluctuated by 14 marks
which can make a lot of differences in the overall placement in the merit list.
24. As stated by the counsel for petitioner that if the performance of the
petitioner is compared with any of the other years coming under review i.e.
2009-10, 2011-12, 2012-13 and 2013-14 (Annexure P-8(colly)) with that of
the marks awarded by other reporting authorities i.e. marks awarded vis-a-
vis his achievements under those very parameters, it would be observed that
marks awarded are much higher and so more appropriate for almost identical
or parallel performance in these years. This concludes the prejudice of the
particular reporting authority against the petitioner. Moreover, the reviewing
authority and accepting authority without assigning reason accepted the
report made by reporting officer. On comparing his performance with the
very next year i.e. 2011-12 (Annexure P-8) in which the petitioner has
worked in the same branch for over 9 months, before being transferred to
Audit Department on 06.01.2012, it was observed that his score has gone up
from 65 to 87 i.e. a phenomenal increase of 22 marks i.e. 22%. It goes
without saying that this increase is only because of the reason that the
reporting and reviewing authorities had been different and dispassionate
executives, otherwise his performance was no better in these 9 months than
the year 2010-11 and also that the petitioner did not make any miracle
during his working of less than 3 months, in the Audit Department to garner
such a high score.
25. It would be appropriate to highlight that this is appropriate score as it
matches when compared to other years except 2010-11 (Annexure P-1).
The scores under all parameters have come in line with the scores for other
years except 2010-11. This clinchingly concludes that score in 2010-11 has
been a biased score against the petitioner.
26. If the marks to be awarded are genuinely linked to the performance in
comparison to other years, the same would certainly fall in the range of
above 95%, thereby increasing the average to 81+95+87+80+81=424/5 i.e.
84.8% or 42.40 of 50.
27. As per the petitioner's evaluation sheet received from Senior
Management Grade (SMG) Scale IV to Senior Management Grade Scale V,
held at Field General Manager Office (FGMO) Delhi and obtained through
RTI, total marks obtained by him are 76.40 and if the above evaluation as
mentioned above is considered, same would rise to 79.40 as against the
marks 76.70 of the last candidate promoted, thereby making the petitioner
eligible for promotion (Annexure P-9).
28. Alternatively, even if I consider the average of 4 years excluding
2010-11, i.e. 81+87+80+81=329/4 i.e. 82.25, as the marks for the year 2010-
2011 and calculate the average for last 5 years on the basis of the same i.e.
81+82.5+87+80+81=411/5 i.e. 82.3 out of 100 and marks out of 50 would
come to 41-15 and the total would be increased by 1.75 i.e. to 78.15 as
against the marks 76.70 of the last candidate promoted, thereby still making
the petitioner eligible for promotion (Annexure P-8). Thus by all stretch of
imagination, the petitioner would have secured more marks than the last
candidate promoted and so would have been promoted. Thus, this single
entry has ruined the career of the petitioner and he continues to remain in the
same scale for the last 8 years and may remain so as he has now acted as
whistle blower and so may have to bear the onslaught of the management in
future.
29. Even if the average marks obtained by the petitioner over the years
are compared which are in the range of more than 80, the award of 65 marks
as against better performance in 2010-11 sounds prejudicial and deserves
upward revision (Annexure P-1) on the following appreciation:
i. Letter dated 09.02.2011, for recovery under NPA for which a cash
award of ₹7,059/- was conferred on the Petitioner (Annexure P-10).
ii. Letter dated 28.02.2011, for Mobilising LIC Business (Annexure P-
11).
iii. Letter dated 29.04.2011, for achieving the Targets (Annexure P-12).
iv. Letter dated 03.06.2011, for recovery under NPA for which a cash
award of ₹ 15,258/- was conferred on the Petitioner (Annexure P-13).
30. Thus it is established from the above list and events that there is
plethora of such letters, maintaining the consistency in appreciation being
bestowed on him but the same have not been given due weightage.
31. It is pertinent to mention here that the petitioner is shown at serial no.
109 in the list of selected candidates for the selection process of 2015 (page
123 of the petition), whereas, the candidate at Serial No. 99 was the last one
to have been promoted tom MMGS-V. The petitioner secured 76.40 marks
whereas, the last candidate who had been promoted was given 76.70 marks.
Thus, if the PAF of 2010-2011 of the petitioner is ignored, then the
petitioner climbs up in the list to a rank of 69 from Serial No. 109; if the
petitioner is assessed and given marks on the basis of average for four years
i.e. 82.25 marks instead of 65, then, petitioner climbs up to a rank at Serial
No. 69 from Serial No. 109.
32. In AIR 1997 SC 2110, Raj Kumar Vs. Shakti Raj, the Hon'ble
Supreme Court propounded that the principle of estoppel does not apply
against irregularities committed in the selection process and a candidate
cannot be barred from questioning the selection process, though he has
participated in the same.
33. In case of Sukhdev Singh Vs. Union of India & Others: (2013) 9
SCC 566, which is decided by Full Bench of the Supreme Court and their
Lordships were in complete agreement with view taken in Dev Dutt
(Supra).
34. It is important to note that in Sukhdev Singh (Supra), the Hon'ble
Supreme Court considered the case of Abhijit Ghosh Dastidar Vs. Union of
India (UOI) and Ors: (2009) 16 SCC 146, wherein held that the entries
could if at all granted to the employee, the same should not have been taken
into consideration for being considered promotion to the higher grade, if the
entry in the ACR has not communicated to the employee.
35. The similar issue came before this Court in case of Union of India
Vs. V S Arora: 2012 (8) AD (Delhi) 365. The issue before this Court in the
said case was with regard to the below benchmark ACRs, which were not
communicated to the employee. The question was whether when the DPC
meets, what does it have to do with regard to those below benchmark and
non- communicated ACRs? Does it consider those ACRs or is it the
requirement of law that the ACRs should be communicated to the concerned
employees even at that stage and that they be given an opportunity to move
representation against the same and after the representation are disposed of,
the DPC should be reconvened to consider the case of the employees for
promotion ?
36. The said issue has answered by this Court in para 14 as under :
"however, the Supreme Court in Abhijit Ghosh Dastidar
(supra) went further and observed categorically that,
therefore, the entries "good", if at all granted to the
appellant, ought not to have been taken into
consideration for being considered for promotion to the
higher grade. What this meant was that the below
benchmark ACRs, which had not been communicated to
an employee, ought not to be taken into consideration for
the purposes of considering the promotion of that
employee to a higher grade. We must also distinguish
between the stage when ACRs are written and the stage
when they are considered by the DPC. What Dev Dutt
(supra) and, indeed, Abhijit Ghosh Dastidar (supra) hold
in unison is that the ACRs must be communicated to the
concerned employee/officer soon after it is written.
Because, its non-communication is contrary to the
provisions of article 14 of the Constitution. But, this is at
the stage when the ACRs are recorded or shortly
thereafter. The objective of communicating the ACRs is
two-fold. In the first place, as an element of natural
justice, the officer concerned gets an opportunity of
representing against the ACR before it is too late.
Secondly, it also informs and warns the officer concerned
that his performance is not upto the mark so that he may
improve himself in the next year. However, at the stage
of the DPC, the ACRs already stand crystallized and their
communication then may not serve any fruitful purpose
apart from informing the concerned employee/officer
and, perhaps, enabling him to represent against it. But,
the second aspect of improvement is lost. Consequently,
at the stage of the DPC meeting the practical approach
would be to not consider the un-communicated ACRs as
held in Abhijit Ghosh Dastidar (Supra)."
37. Admittedly, the entries made in ACR of 2009-10 and 2010-11 have
not been communicated to the petitioner before holding DPC for the
promotion in question. Therefore, there is no necessity to discuss that who
was Reporting Officer and Reviewing Officer of the petitioner for the year
2009-2010. However, for the sake of repetition, from the period from
1.4.2009 to 11.12.2009 his ACR was Average, but from 12.12.2009 to
31.03.2010 was good. So for the period 2.6.2010 to 31.03.2011, 'Average'
and 1.04.2010 to 20.10.2010 was good. Undisputedly, both the ACR not
communicated to the petitioner.
38. In case of Sukhdev Singh (supra), it is held that the entries not be
taken into consideration if not communicated to the employee. In the case in
hand, the entries of the year 2009-2010 and 2010-11 have not been
communicated but considered for promotion, which is against the settled
law.
39. In view of above discussion and settled law, the petitioner is entitled
for the promotion in question in the year 2015. Consequently, the
respondents are directed to promote the petitioner with all consequential
benefits w.e.f. the date other officers were promoted pursuant to DPC held
in 2015. To this effect, an order for promotion shall be issued within four
weeks from the receipt of this order.
40. The writ petition is, accordingly, allowed.
CM APPL. Nos. 49313/2018 and 27941/2018
In view of the order passed in the present writ petition, these
applications have been rendered infructuous and are accordingly, disposed
of such.
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 06, 2019/ab
