Zahoor Ahmad Bhat & Ors vs Ut Of State & Others
2023 Latest Caselaw 1269 j&K/2

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                                                               S. No. 118
                                                               Suppl. List



     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                WP(C) 2594/2023 CM 6143/2023
                                Caveat No. 2333/2023

Zahoor Ahmad Bhat & Ors.

                                                        ...Petitioner(s)

              Through: Mr. G.A.Lone, Advocate with
                       Mr. Mujeeb Andrabi, Advocate.

                                V/s

UT OF STATE & OTHERS
                                                        ...Respondent(s)

              Through: Mr. Adil Asmi, Advocate.
Coram: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL,
JUDGE

                                  ORDER

06.10.2023

1. With the appearance of learned counsel for the caveator-

respondents, caveat as lodged shall stand discharged.

2. Heard learned counsel for the parties at length and perused the

record.

3. Through the medium of the instant petition, the petitioners have

challenged the Circular issued by the Management of J&K Bank

Limited, under the signatures of General Manager, Human Resources

Development Department, bearing Circular id: 15876 dated 21st

September 2023, in so far as it debars the petitioners from entering into

the online test conducted for promotion of regular Banking Associates

through Fast Track cum Merit Channel to the post Assistant Manager.

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4. It is the specific case of the petitioners that the said Circular

emanates from arbitrariness and ends in hostile discrimination to the

petitioners inasmuch as petitioners are deprived from entering into

competition for their promotion through Fast Track cum Merit Channel

as advertised vide aforesaid Circular.

5. To appreciate the controversy involved, it would be appropriate

to give brief resume of the instant case.

6. The aforementioned Order/Circular, which is impugned in the

instant petition, has taken birth from the womb of Investigation

conducted in FIR Nos. 10/2019 and 01/2020 registered at ACB, J&K.

The case under investigation in these FIRs relate to appointment of

number of Assistant Banking Associates at different times during past

more than two decades by one or the other Chairman of the Respondent

Bank on urgency basis in one or other branch of the Bank throughout

the erstwhile State of Jammu and Kashmir. The FIRs and the

investigation of the cases exclusively rests on the grounds that

appointments of these Assistant Banking Associates are dehors of rules

and are outcome of favoritism, though most of these Assistant Banking

Associates have by now been promoted as Banking Associates.

7. It is further stated that the absorption of the petitioners in the

Respondent Bank has been made through a distinct process in due

course of law, after they were initially appointed HSBC (Hong Kong

Shanghai Banking Corporation) Invest Direct Securities (India) Limited

and then under an arrangement arrived by the said investment company P a g e |3

with the JK Bank Limited, the petitioners were absorbed under a

resolution passed by the Board of Directors of the Bank.

8. Furthermore, it is submitted that the investigation of the case is

hanging as a Damocles Sword upon the head of the petitioners, though

on the facts alleged in the FIRs supra and the reports submitted under

Section 173 CrPC, no case is made out against the petitioners with

regard to their absorption in the respondent Bank. The petitioners, thus,

are working in the Respondent Bank on regular basis as Banking

Associates and stand confirmed in that position vide Order bearing

Reference No. HRD/R&P/2016-512 dated 26th October 2016 and are

eligible for consideration for promotion to the Assistant Manager's

Cadre of the respondent Bank in tune with promotion policy in vogue.

9. In is further stated that the impugned Circular/Order bars the

entry of the petitioners into competition for considering them for

promotion under Fast Track cum Merit Channel on account of being

subject matter of investigation in above mentioned FIRs. The

Circular/Order issued in this behalf regarding the career progression of

Banking Associates for the position of Assistant Manager Cadre at its

bottom adds the lines, "Except...........and/or are subject matter of

investigation in FIR No. 10/2019 and 01/2020 ACB J&K, which are

not only contrary to known Service Rules applicable in the Respondent-

Bank but are also inherently arbitrary and suffer from unreasonableness

and accordingly are liable to be struck down, apart from being offensive

of Article 14 and 16 of the Constitution.

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10. Further, it is stated that mere investigation of a case against a

person for recruitment or an employee for promotion is no ground for

denying the recruitment or promotion to an employee who is otherwise

entitled to it in terms of Rules applicable. The learned counsel submits

that the Respondent Bank is an Authority under Article 12 of the

Constitution of India and, is, therefore, bound by the Constitutional

mandate. The Respondent Bank cannot be allowed to be unfair and

deny the very right of consideration for promotion available to the

petitioners under the prescribed mode, which is guaranteed to them

under Article 16 of the Constitution. The petitioners though eligible and

willing to enter into the competition for considering them for promotion

from present position of Banking Associates to Assistant Manager

Cadre, are being debarred from entering into the competition because

investigation in FIR Nos. 10/2019 and 01/2020 J&K ACB is pending,

in which, they appear as subject matter of investigation, though

admittedly they do not figure either in the FIRs or in the reports

submitted by the Investigation Officer under Section 173 CrPC before

the Court of competent jurisdiction.

11. It is stated that the cases under investigation relate to exercise of

the powers under which the appointments were made in respect of those

Assistant Banking Associates. The case of the petitioners' rests on a

different and distinct footing. The Infrastructure Leasing and Financial

Services, controlled by Government of India through Ministry of

Corporate Affairs, was a leading service provider. The said institute

floated Advertisement Notice dated 24th July 2009 in various local P a g e |5

newspapers including "Daily Excelsior" published from Jammu. The

Advertisement Notice was issued by and under the name of IL&FS

Investment C/O JKB Financial Services Center.

12. As per the petitioners, in terms of said Advertisement Notice,

applications were invited for growth and augmentation of investment

company known as INDIA'S FINANCIAL MULTIPLEX, offering

exciting opportunities for professionals at Jammu and Kashmir offices

as Equity Dealers. Graduates/Post-Graduates within minimum 1-2 years

of relevant work experience was prescribed as qualification. NCFM

certification was also the requirement. The petitioners being fully

qualified as per Advertisement Notice, applied within the prescribed

time in accordance with the terms of the Advertisement Notice. Before

the appointments of the petitioners could be finalized, the said

investment company was transferred or incorporated or changed to

HSBC (Hong Kong Shanghai Banking Corporation) Invest Direct

Securities (India) Limited. The petitioners were thereafter interviewed

by HSBC and JK Bank Management pursuant to the aforesaid

notification. On the basis of the interview and their performance,

petitioners were appointed in HSBC Investment Direct on contractual

basis initially for three months and the contractual appointment was

thereafter extended from time-to-time upto April, 2011. Besides

petitioners, there were other employees working in the said Investment

Company on Permanent/Payroll basis.

13. Further it is stated, that on 1st July 2011, JK Bank Limited and

HSBC Invest Direct Securities (India) Limited, signed an agreement for P a g e |6

increase in brokerage revenue sharing from 60% to 7% on specific

condition that JK Bank will absorb all the staff members working on

payroll and on contractual basis. As per record, the resolution in this

behalf was passed by the Board of Directors of JK Bank on the

aforesaid date. However, before the petitioners were absorbed in the 9th Respondent Bank, they were interviewed on July 2011, and

thereafter were absorbed as Assistant Banking Associates in the

Respondent Bank. Those employees who were working on Regular

basis with HSBC including Sunil Kumar, Reyaz Ahmad Shah and

others, were absorbed as Banking Associates. The petitioners were

thereafter on the basis of their performance, absorbed as Banking

Associates and continues to remain confirmed on that post for the last

five years, and are, therefore, eligible for consideration of promotion in

the Assistant Managerial Cadre of the Respondent Bank, through the

prescribed mode of Fast Track cum Merit Channel, but the same is

being denied to them because the petitioners are unnecessarily and

unjustifiable made subject matter of investigation of FIR Nos.10/2019

and 01/2020 of ACB J&K.

14. It is further stated that the aforementioned FIRs do not pertain to

the initial appointment of the petitioners, yet they are subjected to a

hostile treatment and through an arbitrary exercise of power, denied the

entry into the competition.

15. Further case of the petitioners is that if they are denied entry to

competition, same will suffer in their service career as they will lose all

opportunities for seeking promotion to Managerial Posts, though P a g e |7

eligible and entitled for consideration for such promotion and willing to

enter into the competition.

16. The learned counsel for the petitioners has placed reliance on the

Officers Service Manual, 2022. Clause 9.5 (iii) of the manual provides

that until the Competent Authority has arrived at a conclusion that a

prima facie case is established against an officer and a charge sheet

may be issued to him on specific imputations where departmental

action is contemplated and sanction for prosecution may be accorded, if

sought by the concerned agency, the Officer is to be treated at par with

other officers even in respect of promotion, if his conduct is under

investigation but he has not been placed under suspension. It further

provides that Officer against whom charge sheet has been issued in

departmental inquiry or a charge sheet has been filed by investigating

agency in competent Court, or he/she has been placed under suspension

and/or is facing disciplinary proceedings, will be considered for

promotion, if otherwise eligible, the decision of the Promotion

Committee shall be kept in sealed cover till the outcome of the

proceedings and his case shall be dealt with in accordance with the

sealed cover procedure.

17. Clause 9.6.2 of Officers Service Manual further provides that a

Workmen / employee against whom disciplinary proceedings are

pending, shall be eligible for consideration of promotion. In case on

consideration, he/she is found ineligible for promotion, his/her

promotion shall be kept in abeyance till the disciplinary proceedings are

disposed of.

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18. It is further stated that in presence of the aforesaid clauses of

Officers Service Manual, the Respondent Bank had no authority or

power to deprive the eligible Banking Associates who have completed

five years service on regular basis on 31st March 2023, debar or

disentitle from consideration for promotion through Fact Track cum

Merit channel. The petitioners claim that they have unblemished career

and their annual performance reports are free from any blame, covering

the entire period of their service either as Assistant Banking Associates

or as Banking Associates. The petitioners are working for the last more

than five years on regular basis as Banking Associates and on 31 st

March 2023, and are eligible for seeking promotion to Assistant

Manager Cadre through Fast Track cum Merit Channel but same is

being denied to them without any justifiable cause.

19. Furthermore it is stated that mere filing of FIR or pendency of

investigation is no ground for denying employment to a seeker of

employment in the Government or in any Government controlled

institution. The same is true about promotion to an employee against

whom a case may be pending investigation. The filing of FIR is nothing

but record of allegations of commission of offence, which may or may

not during investigation or during trial in the case get proved. An

employee seeking promotion, therefore, cannot be denied consideration

for promotion, if otherwise eligible.

20. Learned counsel submits has placed reliance on the judgment of

the Hon'ble Supreme Court reported as (1991) 4 SCC 109 titled Union

of India & Ors. Vs. K.V.Jankiraman & Ors., wherein it has been P a g e |9

held that "promotion cannot be withheld merely on the ground of

preliminary inquiry or criminal investigation against an employee."

The Respondent Bank is an Authority under Article 12 of the

Constitution of India and, therefore, its employees are entitled to the

protection available under Article 14 and 16 of the Constitution of

India.

21. The learned counsel for the petitioners further submits that the

condition imposed in the Circular, which is impugned in the present

petition, creates the rider for the petitioners to seek further promotion

and in a way blocks their prospects of seeking further promotion in the

light of the promotion policy for the career progression, which

tantamounts that the petitioners continue to be stagnated and will not be

promoted in the light of the registration of FIRs. Since, stagnation kills

the efficiency of an employee to seek further promotion and the

respondents are under legal obligation to create promotional avenues

for the petitioners on the same analogy as the benefit is being given to

others who are similarly situated, the condition imposed in the

impugned Circular is against the mandate of the law laid down by the

Hon'ble Apex Court in catena of judgments.

22. Prima facie case is made out for indulgence of this Court.

23. Issue notice in the main petition as well as in the application

seeking interim relief. Mr. Adil Asmi, learned counsel appearing for

respondents 3 and 4 accepts notice on their behalf. Notice shall go to

respondents 1 and 2 returnable within four weeks. Steps for their

service within one week. Meanwhile, subject to objections and till next P a g e | 10

date of hearing, the respondents are directed to allow the eligible

petitioners, who have completed three years service on regular basis as

on 31.03.2023 to participate in the selection process / screening test for

promotion as Assistant Manager Grade-1, and in the meantime, there

will be stay with regard to the operation of the following words

contained in the impounded Circular:-

"(and/or) are subject matter of investigation in FIR No.10/2019 and 01/2020 ACB J&K."

24. Modification / alteration on motion.

25. List on 24.11.2023.

26. Copy of this order be supplied to learned counsel for the

petitioner under the seal and signatures of Bench Secretary.

(WASIM SADIQ NARGAL) JUDGE Srinagar 06.10.2023 Muzammil. Q