K.Ananda Prasad Secbad vs The Chairman State Bank Of India ...
2023 Latest Caselaw 2654 Tel

     THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                        AND
     THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR

                  WRIT APPEAL No.576 OF 2008

JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)

        Mr.   D.V.Sitharam       Murthy,      learned       Senior   Counsel

appearing for Mr.Kondaparthy Kiran Kumar, learned counsel for

the appellant.

        Mrs. V. Uma Devi, learned counsel for the respondent No.2-

Bank.

2. This intra court appeal takes an exception to order dated

26.02.2008 passed by the learned Single Judge by which

W.P.No.18599 of 2002 preferred by the appellant seeking

promotion to the post of Senior Management Scale V has been

disposed of with a finding that the appellant is not entitled to

claim promotion to the said post. However, the learned Single

Judge has directed that the appellant shall be at liberty to submit a

representation with regard to his grievance within 15 days,

including his performance appraisal in relation to the years 1999

and 2000, and that the respondent Nos.1 and 2 shall place the ::2::

representation submitted by the appellant before the grievance

redressal committee within a period of one week from the date of

receipt of appellant's representation and the grievance redressal

committee shall consider the appellant's grievance and take a

reasoned decision thereon which shall be communicated to the

appellant within a period of three months from the date of such a

representation.

3. In order to appreciate the grievance of the appellant, relevant

facts need mention which are stated infra.

4. The appellant joined the service in the State Bank of India

(hereinafter referred to as 'the Bank') as a Clerk on 21.04.1970.

The appellant was promoted as a Trainee Officer on 01.09.1977.

Thereafter, the services of the appellant were confirmed on

01.09.1979 for the post of Grade I Officer. The appellant was

further promoted to Scale II Officer on 01.08.1984.

5. The appellant was promoted to Scale III Officer on

01.11.1994 and was further promoted as Scale IV Officer on

01.11.1998. According to the appellant, the respondent No.3

orally instructed him for sanction of commercial loan of ::3::

Rs.44 lakhs to S.V. Diary Farm, Chinnakakani. The appellant did

not recommend for grant of the aforesaid loan, as according to him,

the said proposal was a non-viable proposal. It is the case of the

appellant that the respondent No.3 got infuriated and made several

adverse remarks in the confidential reports of the appellant for the

years 1998-1999 and 1999-2000.

6. According to the appellant, he was eligible for promotion to

Scale V Officer after putting in four years of service as Scale IV

Officer. However, according to the appellant, the adverse

remarks contained in the performance appraisal reports for the

years 1998-1999 and 1999-2000 were not communicated to the

appellant. The appellant was not called for interview which was

scheduled to be held on 25.09.2002.

7. The appellant thereupon filed the writ petition seeking a

direction to the Bank to include his name in the zone of

consideration for promotion to the post of Senior Management

Scale V. In addition, the appellant sought a direction that

he is eligible and qualified to be promoted to the said post.

The appellant also sought a direction to the Bank to consider his ::4::

case for promotion to the post of Senior Management Scale V

along with other eligible candidates for the year 2002 and promote

him if found suitable with all consequential benefits.

8. The learned Single Judge, by an order dated 26.02.2008, by

placing reliance on a decision of the Hon'ble Supreme Court in

U.P. Jal Nigam v. Prabhat Chandra Jain inter alia held that

indication of fall in the standard of an employee may be a salutary

practice which conduces administrative efficiency but the same is

different from holding that non-communication of 'downgrading'

vitiates the very selection. Accordingly, it was held that the

appellant was not entitled for consideration of relief of promotion

as sought for by him. However, the learned Single Judge granted

the liberty to the appellant to submit a representation with regard to

his grievance of performance appraisal for the years 1999 and 2000

and disposed of the writ petition in the manner stated supra. In the

aforesaid factual background, this intra court appeal arises for our

consideration.

(1996) 2 SCC 363 ::5::

9. Learned Senior Counsel for the appellant fairly submitted

that the appellant has no right to claim for promotion, but the

appellant has the right to seek consideration. It is pointed out that

the decision of the Hon'ble Supreme Court in U.P. Jal Nigam

(supra) was subsequently overruled by the Hon'ble Supreme Court

in Sukdev Singh v Union of India 2. It is further submitted that

even if the remarks made in the performance appraisal of the

appellant for the years 1998-1999 and 1999-2000 were not adverse,

the same ought to have been communicated to the appellant as the

same were the basis for depriving the legitimate right for

consideration for promotion to the post of Senior Management

Scale V. However, it is pointed out that during the pendency of the

writ appeal, the appellant has attained the age of superannuation on

30.09.2008 and the relief of consequential benefits be accorded to

the appellant.

10. On the other hand, Mrs. V. Umadevi, learned counsel for the

Bank, has submitted that the case of the appellant has been dealt

with as per the promotion policy and there are no adverse remarks

(2013) 9 SCC 566 ::6::

against him for the years 1998-1999 and 1999-2000. It is further

submitted that the appellant has rightly been held to be not entitled

for promotion to the post of Senior Management Scale V and the

order passed by the learned Single Judge does not call for any

interference.

11. We have considered the rival submissions made on both

sides and have perused the record.

12. Admittedly, the appellant was entitled for consideration for

promotion to the post of Senior Management Scale V, as he had

completed four years of service as Senior Management Scale IV.

The criteria for promotion to the post of Senior Management Scale

V reads as under:

"5.4 PROMOTION FROM MMG SCALE III TO SMG SCALE IV & FROM SMGS IV TO SMGS V

5.4.1. Eligibility Criteria

i. Promotions to SMGS IV - Minimum 4 years' service as Officer MMG Scale III

ii. Promotions to SMGS V - Minimum 4 years' Service as Officer SMG Scale IV.

5.4.2. Zone of Consideration

All officers who fulfill the service eligibility criteria for promotion to SMGS IV and V as laid down above will constitute the Zone of Consideration. Promotion Appraisal Forms and ::7::

Assignment Appraisal Reports will accordingly be complied on all such officers.

5.4.3 Zone of Selection

With a view to facilitating assessment to suitability for promotion, a marking system has been introduced. The parameters for assessment and the distribution of marks under different parameters are as under:-

                              Parameters         Weightage




                          under   Reporting
                          system.

               iii.       Assessment       of        20
                          traits






i.        All Officers constituting the Zone of Consideration will be

evaluated on the first three parameters by the Evaluation Committee constituted by the Promoting Authority for the purpose.

ii. For the purpose, performance of the officer in the assignments held and the ratings earned under Reporting Systems during the preceding four years and the assessment on Traits by the Recommending Authority will be taken into consideration.

iii. On the basis of the marks awarded by the Evaluation Committee, the cut-off marks will be determined in such a manner that the number of officers normally not exceeding four times the number of vacancies and scoring not less than 70% marks would constitute the Zone of Selection. In case more than one office secures marks equivalent to the cut-off marks, all such officers will be included in the Zone of Selection even if the number exceeds the stipulation of four times the number of vacancies.

5.4.4. Interview

All officers constituting the Zone of Selection will be interviewed by an Interview Committee Constituted by the ::8::

Promoting Authority for the purpose. The Constitution of the Interview Committees will be as under:-

For promotion to SMG IV - Chief General Manager-

Chairman 2 General Managers-

Members.

For promotion to SMG V - Dy. Managing Director-

Chairman 2 Chief Gen. Managers-

Members.

The minimum qualifying marks in the interview will be 50%."

As per the aforesaid evaluation criteria, four years performance

appraisal reports of the employee were to be taken into account.

13. Before proceeding further, it is apposite to take note of the

legal principles pertaining to communication of adverse remarks.

The Hon'ble Supreme Court in Dev Dutt v. Union of India and

others 3 held at paragraphs 16 and 17 as under:

"16. In our opinion if the Office Memorandum dated 10/11-9-1987, is interpreted to mean that only adverse entries (i.e. "poor'' entry) need to be communicated and not `fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or to get some other benefit. For example, if the bench mark is that an incumbent must have `very good' entries in the last five years, then if he has `very good' (or even `outstanding') entries for four years, a `good' entry for only one year may yet make him ineligible for promotion. This `good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or to for some other extraneous consideration.

(2008) 8 SCC 725 ::9::

17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a 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: (1) 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 (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India that arbitrariness violates Article 14 of the Constitution".

Thus, it is evident that the adverse entry made in the annual

confidential report of a public servant has to be communicated to

him within a reasonable time so that he has opportunity to submit a

representation against the entry if he feels it is unjustified. It was

further held that non-communication of the adverse entry is

arbitrary.

14. The Hon'ble Supreme Court in Sukdev Singh (supra)

considered the decision rendered by it in U.P. Jal Nigam (supra)

and impliedly overruled the same. It is pertinent to mention herein

that the decision in U.P. Jal Nigam (supra) was rendered by a two-

Judge Bench of the Hon'ble Supreme Court, whereas the decision ::10::

in Sukdev Singh (supra) was rendered by a three-Judge Bench of

the Hon'ble Supreme Court. In paragraph 3 of the aforesaid

decision, it was held as under:

3. Subsequent to the above two decisions, in the case of Dev Dutt v. Union of India, this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two-Judge Bench on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam and principles of natural justice exposited by this Court from time to time particularly in A.K. Praipak v. Union of India ((1969) 2 SCC 262); Maneka Gandhi v. Union of India ((1978) 1 SCC 248); Union of India v. Tulsi Ram Patel (1985) 3 SCC 398); Canara Bank v. V.K. Awasthy ((2005) 6 SCC 321 and State of Maharashtra v. Public Concern for Governance Trust ((2007) 3 SCC 587) concluded that every entry in the ACR of a public servant must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. This is what this Court observed in paragraphs 17 & 18 of the Report in Dev Dutt at page SCC P. 733:

17. "In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a 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: (1) 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 (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this ::11::

Court in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution.

18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."

Thus, it is evident that three-Judge Bench of the Hon'ble Supreme

Court subsequently in Sukdev Singh (supra) disapproved the ratio

laid down by the two-Judge Bench in U.P. Jal Nigam (supra). The

Hon'ble Supreme Court in Abhijit Ghosh Dastidar v.Union of

India and others 4 held in paragraph 8 as under:

"Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non- communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case SCC p.738, para d 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the

(2009) 16 SCC 146 ::12::

higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him".

Thus, even an entry of 'good' which may have an adverse effect

on the promotion prospects of an officer is required to be

communicated.

15. In the backdrop of the aforesaid well settled legal principles,

we may advert to the facts of the case on hand. The entry made in

the performance appraisal report for the year 1998-1999 reads as

under:

         (A) ATTRIBUTES      BASED                    COMMENTS
         APPRAISAL

         01. Knowledge of work,            Performs duties in a
         procedures, rules and             satisfactory manner
         regulations

         02. Control and supervision       Capable of ensuring that the
                                           staff carry out their duties.

         03. Decision making               Passes the buck

04. Diligence (Motivation, task Diligent involvement, and focus on goals)

05. Sincerity, honesty and Possess high integrity integrity

06. Understanding and Fully aware of the environment awareness of environment

07. Sociability, Public Sociable Relations and image building ::13::

08. Marketing Ability Maintains contacts

09. Ability to appraise Shows interest to get new business business in the branch books.

10. Ability to appraise and His relationship with the develop juniors juniors is reserved. The official is capable of developing people when approached

OVERALL ASSESSMENT OF PERFORAMNCE (Marks to be stated): 14 (fourteen)

Sd/-

REPORTING AUTHORITY

(B) GENERAL COMMENTS (Strengths, potential and suitability for Promotion) Examples and data in support of comments are to be furnished wherever possible.

Sri Anand Prasad is an official having knowledge of bank work, rules and regulations. He leans too much on controllers for everything and passes the buck. He does not take even the fair banking risk. He is satisfied with routine work in a routine manner. He may be tried in positions which do not contain budgetary responsibilities preferably in zonal office/LHO.

16. The entry made in the performance appraisal report for the

year 1999-2000 reads as under:

Customer Service Satisfactory. There are a few (including disposal of complaints which were dealt complaints etc.) with to the satisfaction of the customers subsequently.

Submission of returns and Needs reminders quality and promptness of correspondence Appraisal, Supervision and Needs improvement follow-up of credit Industrial relations Cordial Attitude towards SCs/STs/Weaker Sections Favourable of the society ::14::

17. As per the promotion policy, the annual confidential reports

for four years, namely 1998-1999, 1999-2000, 2000-2001 and

2001-2002 were required to be considered for promotion to the

post of Senior Management Scale V. The performance appraisal

reports of the appellant for the years 2000-2001 and 2001-2002

were excellent. In the performance appraisal reports of the

appellant for the years 1998-1999 and 1999-2000, his performance

has been recorded as 'good'. However, even the aforesaid entries

which are 'good' ought to have been communicated to the

appellant as his entries for the years 2000-2001 and 2001-2002

were excellent.

18. Admittedly, the entries made in the performance appraisal

reports for the years 1998-1999 and 1999-2000 have not been

communicated to the appellant. Therefore, the action of the Bank

in not considering him for promotion on this ground is held to be

illegal and is in violation of the aforesaid well settled legal

principles.

19. The finding recorded by the learned Single Judge that non-

communication of 'downgrading' of entries made in the ::15::

performance appraisal report to the appellant is not vitiated in law

in view of the law laid down by the Hon'ble Supreme Court in

U.P. Jal Nigam (supra) is incorrect. As already noticed supra, the

two-Judge Bench judgment of the Hon'ble Supreme Court in U.P.

Jal Nigam (supra) was not approved by the subsequent

two-Judge Bench judgment of the Hon'ble Supreme Court in

Dev Dutt (supra) and subsequently by three-Judge Bench Judgment

of the Hon'ble Supreme Court in Sukdev Singh (supra).

20. For the aforementioned reasons, the order dated 26.02.2008

passed by the learned Single Judge in W.P.No.18599 of 2002 is set

aside. The appellant has attained the age of superannuation during

the pendency of this writ appeal on 30.09.2008. Therefore, it is

directed that the Bank shall consider the case of the appellant

for promotion to the post of Senior Management Scale V as on

01.11.2002 without taking into account the performance of the

appellant indicated in the performance appraisal reports for the

years 1998-1999 and 1999-2000. Needless to state that in case the

appellant is found entitled for promotion to the post of Senior

Management Scale V, he shall be entitled to all consequential ::16::

benefits. The aforesaid exercise shall be completed by the Bank

within a period of four months from today.

21. Accordingly, the writ appeal is disposed of. There shall be

no order as to costs.

As a sequel, miscellaneous petitions, pending if any, stand

closed.

___________________ ALOK ARADHE, CJ

________________________ N.V.SHRAVAN KUMAR, J Date:23.09.2023 Lrkm