Bank Of Baroda Officers Union vs Bank Of Baroda
2021 Latest Caselaw 3049 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

         S.B. Civil Misc. Stay Application No. 13980/2020

                                        In

              S.B. Civil Writ Petition No. 14712/2020

Bank Of Baroda Officers Union, (Rajasthan State Committee),
Having Its State Office At Plot No. 110, Bhartendu Nagar,
Khatipura, Jaipur, Rajasthan Through Its Zonal Secretary, Sh.
Lokesh Mishra R/o House No. 110, Bhartendu Nagar, Khatipura,
Jaipur, Rajasthan.
                                                                    ----Petitioner
                                    Versus
1.     Bank Of Baroda, Through Its Zonal Head (General
       Manager)      Office     Address-        Bank       Of    Baroda,   Baroda
       Bhawan, A-13, Airport Plaza, Durgapura, Tonk Road,
       Jaipur, Rajasthan-302018.
2.     The General Manager (Hrm), Bank Of Baroda, Head Office
       - Hrm-6Th Floor, Baroda Bhawan, Rc Dutt Road Alkapuri,
       Baroda-390007.
                                                                 ----Respondents

For Petitioner(s)         :     Mr. Pradeep Kumar
For Respondent(s)         :     Mr. Rajendra Prasad, Senior Counsel
                                assisted by Mr. Ashish Sharma



          HON'BLE MR. JUSTICE INDERJEET SINGH

                                     Order

22/07/2021

Heard on the application for vacation of the interim order

dated 17.12.2020 filed on behalf of the respondent(s).

This writ petition has been filed by the petitioner with the

following prayers;

"A. By an appropriate writ, order or direction, the impugned circular bearing no. HO:BR:112/446 dated 02.12.2020 (ANNEXURE-

5), impugned circular bearing no. HO:BR:112/447 dated 02.12.2020 (ANNEXURE-6) and impugned

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circular bearing no. HO:BR:112/448 DATED 02.12.2020 (ANNEXURE-7), issued by respondents may kindly be quashed and set aside.

B. By an appropriate writ, order or direction, the clause no. 4.1,4.2.1, 4.2.2 and clause no. 9.4.1, 9.4.2 and 9.4.3 of the impugned promotion policy dt. 02.12.2019 (ANNEXURE-4) may be quashed and set aside, being contrary to each other and being in violation of the Article 14,16 and 21 of the Constitution of India.

C. By an appropriate writ, order or direction, the respondent bank may be directed to make promotions to grade MMG/S-II, MMG/S-III and SMG/S-IV only after making appropriate provisions for converting the BOB GEMS grade into numerical numbers- % (percentage) for assessment of performance while carrying out the promotion exercise for the year 2021-2022. D. By an appropriate writ, order or direction, the COHORT system adopted by the bank for preparation of APAR may be quashed and set aside.

E By an appropriate writ, order or direction, the respondent bank may be directed to make a transparent and consistent promotion policy having a definitive and consistent assessment criterion while preparing the annual performance appraisal report of an employee.

F. Any other order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of the case and in favour of the petitioner may also be passed.

N. Cost of the writ petition may kindly be awarded in favour of the petitioner".

This Court while issuing notice to the respondent(s) on 17.12.2020

passed the following order;

"One of the arguments raised by the learned counsel for the petitioner is that for the purpose of assessing the performance of the candidates who are appearing for promotion, as per the promotion policy of Bank of Baroda, dated 02.12.2019 are on the final APAR ratings/GEMS grade score secured. As per clause 9.4.3. Candidate must have secured a minimum of 60% in the final average marks for normal/merit channels and minimum 75% marks for promotion in fast track/merit channel for performance so arrived at as in point 9.4.2 above to be considered for promotion to the higher grade/scale. However, the APAR's are being assessed by benchmark grading as A, AA, BB, & BBB and there is no equivalence provided either under the promotion policy or under the circular to assess the score of each grade. Thus, ambiguity has arisen in the circulars with regard to making promotions for different scales.

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Learned counsel for the petitioner submits that they have strategic framework for officers issued vide circular dated 15.06.2020, which does not mention as to the grade marks of each grades.

Issue notice of writ petition as well as stay application, returnable within four weeks. In the meanwhile the respondents may conduct the exercise for promotion, however, no final result shall be declared.

Being aggrieved by the order dated 17.12.2020, the respondent-

bank filed D.B. Special Appeal Writ No. 472/2021 which was disposed of

by the Division Bench of this Court vide order dated 07.07.2021 which

reads as under;

"Learned counsel appearing for the appellants seeks permission to withdraw the appeal so as to pursue the matter before the learned Single Judge of this Court in the light of order dated 30.06.2021 passed by the Supreme Court in SLP No.7485/2021.

Permission is granted.

The appeal is, accordingly, dismissed as withdrawn.

The Registry is directed to list the writ petition pending before the learned Single Judge as directed by the Supreme Court vide order dated 30.06.2021.

The respondent-Bank also filed Special Leave to Appeal No.

7485/2021 in this matter against the order dated 24.05.2021 which was

also disposed of by the Hon'ble Supreme Court vide order dated

30.06.2021 which reads as under;

"The present special leave petition arises out of the order dated 24.05.2021 passed by the Division Bench of the High Court listing D.B. Civil Special Appeal No. 472/2021 on 07.07.2021.

The aforesaid appeal arose out of the proceedings which are still pending before the Single Judge of the High Court in S.B. Civil Writ Petition No. 14712/2020. The order dated 05.04.2021 passed by the Single Judge was to the following effect:

"Learned counsel for the petitioner states that the rejoinder has been filed. A copy of the rejoinder be made available to counsel for the respondents. List this case again on 19.04.2021 for final arguments. Interim order, if any, to continue." The record shows that the present petitioner has filed an application for vacation of interim relief granted in S.B. Civil Writ Petition No. 14712/2020 and instead of taking up said application, the writ petition was directed to be posted for final arguments on 19.04.2021. Aggrieved by

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the non-consideration of the application seeking vacation of interim relief, the aforementioned D.B. Civil Special Appeal No. 472/2021 was preferred before the Division Bench of the High Court.

Heard Ms. Praveena Gautam, learned Advocate in support of the petition, and Mr. Ajay Choudhary, learned Advocate who appeared for the respondent on caveat. Since the Single Judge of the High Court had directed the listing of the matter for final arguments on 19.04.2021, ends of justice would be met if the writ petition before the Single Judge is either taken up for final arguments and if, for some reason it is not possible to hear said petition finally, at least the application seeking vacation of interim relief be taken up for consideration. Ms. Gautam, in all fairness, submits that D.B. Civil Special Appeal No. 472/2021 shall be withdrawn by her client.

We, therefore, request the Single Judge of the High Court to take up the writ petition as early as possible for final arguments or at least, consider the application for vacation of interim relief in case the final hearing in writ petition is otherwise not possible at an early date. With the aforesaid observations, the special leave petition stands disposed of.

Pending applications stand disposed of. The Registry of this Court is directed to send a copy of the instant order to the Registry of the High Court.

Learned senior counsel appearing on behalf of Respondent-Bank

submitted that in view of the judgment passed by the Hon'ble Supreme

Court on 30.06.2021, they may be heard on stay vacation application.

Learned Senior counsel appearing on behalf of the respondent-

bank submits that respondent(s) have started the process of making

promotions of the officers of the bank to higher grade in the year 2021-

22.

Learned senior counsel further submits that petitioner union has

filed this writ petition challenging the promotion policy dated

02.12.2019. Learned senior counsel further submits that earlier in the

previous year when the respondent bank was making the promotion of

the officer grade, the petitioner union filed S.B. Civil Writ Petition No.

1868/2020 wherein they prayed that the respondent(s) be directed to

make the promotion according to the criteria laid down in the original

promotion policy dated 02.12.2019. Learned senior counsel further

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submits that members of the petitioner union are 1930 only whereas

other four unions are also there and their members are 34,329 apart

from the petitioner union and no other union has challenged the

promotion policy.

Learned senior counsel further submits that the petitioner has

concealed the material facts about filing of earlier writ petition and

prayer made therein and in support of the contention learned senior

counsel relied upon the judgment passed by the Hon'ble Supreme

Court in matter of K.D. Sharma Vs. Steel Authority of India Ltd. &

Ors. (2008) 12 SCC 481 in which it has been held as under;

"38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek" or to "pick and choose" the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts".

39. If the primary object as highlighted in Kensington Income Tax Commrs. is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an

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applicant requires to be dealt with for contempt of court for abusing the process of court".

Learned counsel appearing on behalf of the petitioner submits

that members of the petitioner union were earlier in the Dena Bank and

Vijaya Bank and after amalgamation with the Bank of Baroda they are

lesser in number. Counsel further submits that method of filling up the

APAR of the earlier Dena Bank and Vijaya Bank is different from the

present Bank of Baroda. Counsel further submits that due to different

mode of filling up the APAR of the employees, the employees of the

Bank of Baroda are in advantageous position. Counsel further submits

that Bank of Baroda in a mala fide manner has provided no equivalence

for the criteria of adjudging the APAR of different banks, therefore, the

members of the petitioner union are facing greater hardship. Counsel

further submits that without any approval of the competent authority

the policies/circulars have been issued by the respondent(s).

Counsel further submits that earlier writ petition filed by the

petitioner union relates to the earlier promotions, therefore, the

petitioner has not concealed anything in this writ petition. Counsel

further submits that earlier these circulars were not there, therefore, the

petitioners have not mentioned in this writ petition. Counsel further

submits that neither the petitioner has challenged the provisions of the

policy nor the circulars issued subsequently, therefore, there is no

concealment of facts.

Heard counsel for the parties and perused the record.

Application filed by the respondent bank under Article 226(3) of

Constitution of India for vacation of stay order passed by this Court

deserves to be allowed for the reasons; firstly, apart from the members

of the petitioners union 34,329 officers who belong to other unions have

not challenged the promotion policy, secondly; the petitioners have not

levelled any allegation of mala fide against the officers of the bank,

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therefore, it cannot be said that respondent-bank is acting in any mala

fide manner; thirdly, considering the fact that the respondents are

making the promotions of officers of various grades throughout the

country for smooth functioning of the Bank, I deem it just and proper to

allow these applications in the interest of Bank and also in the interest

of account holders.

In that view of the matter, this application for vacation of interim

order is allowed. Interim order passed by this dated 17.12.2020 is

hereby vacated.

However, any promotion made by the respondent bank shall

remain subject to final outcome of this writ petition.

(INDERJEET SINGH),J

CHETNA BEHRANI /26

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