Telangana High Court

Chichula Bhaskara Rao vs Union Of India on 10 January, 2025

             THE HON'BLE SRI JUSTICE PULLA KARTHIK

                      WRIT PETITION No.590 of 2024
ORDER:

This Writ Petition, under Article 226 of the Constitution of

India, is filed seeking the following relief:

"... declaring the orders of rejection dt.07.04.2022 and 16.09.2022 as illegal, arbitrary and violative of Articles 14, 16 and set aside the same and further direct the Respondents to include vacancies of Assistants in Class III for the year 2019-2020, which have arisen falling under the promotion quota of 3% and to fill up the same basing on the performance in departmental examination conducted on 30.01.2022 and the merit list published on 10.02.2022 and consequently consider the Petitioners for promotion to the post of Class III with all consequential benefits...."

2) Heard Sri M. Srikanth, learned counsel appearing for

petitioners 1, 3 to 5, Sri G.Sanjeeva Reddy, learned counsel, for

respondent No.1 and Sri B.Nalin Kumar, learned Senior counsel,

representing M/s. 'N' Legal, Hyderabad, learned counsel for

respondent No.2.

3) Learned counsel for the petitioners has submitted that the

petitioners (i.e. petitioners 1, 3 to 5 only as petitioner No.2 has

withdrawn the writ petition) earlier worked in Indian Army/Navy/Air

Force and later they were selected and appointed in the category of

Class-IV in Reserve Bank of India on 05.07.2013 and 15.02.2017

respectively and since then they have been working as such. Earlier,

the respondent-Bank and employees Union have entered into a

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Memorandum of Settlement (MOS) for providing a channel of

promotion to the next category of Class-III posts. As per the

Settlement dated 29.04.2014, promotion was to be based on a

departmental examination to be conducted every year. Further, as

per the settlement, 3% of the actual working strength for Class-III

employees, as on 1st January of the Calendar Year, would have to be

filled up by promotion. As per the agreement, the examination

prescribed was an objective type of examination. Further, the

minimum service required to be eligible for promotion was five years

and the Settlement was agreed to be valid for five years from

29.08.2014 and was in force till the panel year 2018, after which, the

scheme has to be reviewed by mutual consent. Learned counsel has

further contended that during the years 2019 and 2020, neither

departmental examination were held nor scheme was reviewed. It is

contended that till a fresh settlement is entered between the

Management and Union, earlier settlement would continue to govern

the relations between the parties to the settlement. Therefore, the

respondents ought to have conducted departmental examination for

both the years i.e. 2019 and 2020. It is further contended that

insofar as Class-III staff, who also fall under the category of workmen,

are concerned departmental tests have been conducted and they have

been promoted to the next higher category of Assistant Manager

(Grade-A) and Private Secretary (Grade-A). Further, direct recruitment

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to the post of Class-III have been conducted and quota has also been

filled up, but, for no reason the promotional examination for promotes

was not conducted, while filling up through another feeder category.

Therefore, the action of the respondents in not conducting

promotional test for the years 2019 and 2020 is gross discriminatory

and arbitrary. It is further submitted that a fresh Memorandum of

Settlement has been entered between the Union and the respondent

Bank for the year 2021 on 02.12.2021. Consequently, on 14.12.2021

respondent No.2 has issued a Circular notifying the examination

which was conducted on 30.01.2022 for the panel year 2021.

However, in the said notification, the vacancies arose in the years

2019 and 2020 were not included. Therefore, the Union submitted a

representation stating that vacancies of 2019 and 2020 also be

included in the present notification, but no action is taken thereon.

Learned counsel has further submitted that in the said examination,

petitioners have secured more than the minimum qualifying marks

and in the normal course they would have been promoted to class-III

posts, had the vacancies that arose in the years 2019 and 2020 been

included. But, contrary to the Settlement entered earlier, the said

vacancies have not been included nor indicated in the 2021

notification, as a result of which, the petitioners are denied their

legitimate promotion. Further, the request of the petitioners for

inclusion of the vacancies was rejected vide letter dated 07.04.2022

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and the same is illegal, arbitrary and violative of Articles 14 and 16 of

the Constitution of India. Learned counsel further contended that

aggrieved by the similar rejection orders denying inclusion of

vacancies of the years 2019 and 2020, several writ petitions were filed

in High Courts across the country including High Court of Madhya

Pradesh and High Court of Judicature at Allahabad (Kanpur) wherein

interim orders were granted in favour of the petitioners therein.

Therefore, the impugned action of the respondents in not including

the vacancies for the years 2019 and 2020 to the post of Assistant in

Class-III, is wholly illegal and arbitrary. It is well settled that the right

to be considered for promotion is a fundamental right and it is failure

on the part of the respondents to conduct an examination for the

years 2019 and 2020 while conducting direct recruitment as well as

examination for other categories, which is wholly discriminatory and

arbitrary. Learned counsel has relied on the following judgments in

support of his contentions:

i)     Mohan Mahto v. Central Coal Field Ltd., 1;

ii)    Life Insurance Corporation of India v. D.J. Bahadur 2; and

iii)   AIR India Ltd., v. Vishal Capoor 3.



4)     Per contra, the learned Standing Counsel for respondents 2 to

6, while admitting the execution of Memorandum of Settlement

1MANU/SC/7934/2007 2 (1981) 1 SCC 315 3 (2005) 13 SCC 42

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(MOS), dated 29.04.2014, signed by respondent-Bank with All India

Reserve Bank Workers Federation (in short 'Federation') on Scheme of

Promotion of Class-IV employees, has stated that the said MOS

provides for conducting of promotional examination for 5 years i.e.

from panel year 2014 to panel year 2018, after which, the scheme of

promotion has to be reviewed by mutual consent. Therefore, after

informal consultation with members of the Federation, draft MOS was

prepared and sent to the Federation vide letter dated 21.06.2019, in

turn, the Federation vide its letter dated 27.09.2019 conveyed their

agreement to the draft MOS and requested the Bank to call for a

formal meeting of office bearers of Federation to finalize the MOS.

After consultation thereof, draft MOS was revised, modified and sent

to Federation on 05.11.2019. As there was no response, a reminder

was sent on 27.01.2021. The Federation vide its letter dated

20.07.2021 informed the Bank that they are agreeable for conducting

of promotional test for Class-IV employees at the earliest.

4.1) Subsequently, the MOS dated 02.12.2021 was entered between

the Bank and Federation on the scheme of promotion of Class-IV

employees to the post of Assistant in Class-III wherein it is clearly

mentioned that next promotion of Class-IV employees to Class-III

posts will be taken up for the calendar year 2021. Further, the MOS

dated 02.12.2021 was effective for the specific panel years and not

each year and para 6 of MOS dated 29.04.2014 and 02.12.2021

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clearly prescribes 'Effect of the Scheme'. Further, both the MOS did

not stipulate the vacancies for promotion of Class-IV employees to

Class-III for the years 2019 and 2020. The said panel years are

neither covered in any of the MOS nor such provision was made in the

said MOS to the effect that the number of vacancies subject to

maximum 3% of the actual working strength of Class-III employees at

the office will continue to be allotted for the years of non-

existence/cession of MOS and no MOS were in existence for the panel

years 2019 and 2020. Learned Standing Counsel has further

contended that at para 5(ii) of the said MOS, it was clearly stated that

the promotions will be only to the extent of Office-wise vacancies

notified to be filled strictly in order of merit for that Office. Without

any challenge to the provisions of MOS dated 29.04.2014 or

02.12.2021, the petitioners are not entitled for any relief. Further, the

petitioners themselves have participated in the recent promotion

process i.e. departmental examination for promotion of Class-IV to the

post of Assistant in Class-III, which was notified on 30.10.2023 and

examination held on 10.12.2023. Therefore, the petitioners having

been participated in the said promotion process without any protest,

are estopped from seeking any relief in the nature of restraining the

filling up of vacancies under the very same process.

4.2) Further, in terms of MOS dated 02.12.2021, a circular dated

14.12.2021, was issued for conducting promotion examination for the

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year 2021 and the examination was also conducted on 30.01.2022

wherein 17 class-IV employees, including the petitioners herein, have

appeared from Hyderabad office as against 3 vacancies and the said

vacancies were filled up as per merit by the persons who got higher

merit in the written examination than the petitioners herein.

Thereafter, the promotional examination for the year 2023 was also

held on 30.10.2023 wherein also the petitioners herein have

participated, but they, excluding petitioner No.2, could not succeed.

Therefore, the present petitioners could not be promoted owing to lack

of performance in promotional examination.

4.3) Learned Standing Counsel has strenuously contended that by

way of the present writ petition, the writ petitioners are indulging in

approbate and reprobate at the same time by participating in

promotional examination as per the MOS dated 02.12.2021 and

pressing the claims impermissible thereunder. It is further submitted

that in terms of MOS dated 21.09.2014 Ex-Servicemen including the

petitioners are eligible to appear for the promotional examination after

5 years of regular service whereas the other Class-IV employees are

eligible only after ten years (in case of Degree holders) and 15 years

(in case of non-graduates) in the Bank, in terms of MOS dated

29.04.2014. Further, MOS dated 29.04.2014 provides for conducting

of promotional examination only from the panel years 2014 to 2018

and there is no provision for conducting examination beyond the said

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period and a separate MOS is required to be entered for further

conduct of the promotional examination for Class-IV employees for

the panel years 2019 and 2020. Further, there is no provision in any

of the MOS to carry forward the promotional vacancies to the next

panel years.

4.4) It is further contended that in Manish Kumar Shahi v. State

of Bihar 4, the Hon'ble Supreme Court has held that having

participated in a selection process without any protest, it would not

be open to an unsuccessful candidate to challenge the selection

criteria subsequently. Further, the reliance placed by the learned

counsel on the interim order dated 12.12.2023 passed by the

Allahabad High Court in W.P.No.8566 of 2022 is misplaced and not

applicable to the facts of the present case since the petitioners therein

have not participated in the promotion exercise conducted on

10.12.2023. Learned Standing Counsel has further contended that

the respondent Bank has issued a recruitment notification dated

13.09.2023 for filling up of Assistants in Class-III by way of direct

recruitment, and inspite of preparing a merit list, it could not proceed

further due to the interim order passed by this Court on 23.01.2024.

Hence, it is prayed this Court to dismiss the writ petition in the

4 (2010) 12 SCC 576

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interest of justice. Reliance has also been placed on Anupal Singh v.

State of Uttar Pradesh 5.

5) This Court has taken note of the submissions made by

respective parties.

6) A perusal of the record discloses that admittedly MOS dated

29.04.2014 was in force for a period of five years i.e. for the panel

years 2014 to 2018. According to the respondents, there was no

provision in MOS dated 29.04.2014 to conduct promotional

examination beyond the stipulated period. Further in any of the MOS

dated 29.04.2014 and 02.12.2021 there is no provision to carry

forward the promotional vacancies to the next panel years in the

absence of existence of any MOS and the petitioners failed to place

any rebuttal material before this Court.

7) Further, it is also an admitted fact that the present petitioners

have participated in the promotional examination for the panel year

2021 held on 30.01.2022 and for the panel year 2023 held on

10.12.2023, which were conducted pursuant to MOS dated

02.12.2021, and remained unsuccessful, except petitioner No.2, who

was successful in the promotional examination for the panel year

2023 and withdrawn the writ petition on 21.02.2024. Therefore, the

present writ petitioners having participated in the promotional

5 (2020) 2 SCC 173

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examination without any protest are estopped from seeking the

present relief.

8) In this context, it is apt to observe that the Hon'ble Supreme

Court in Anupal Singh's case (referred supra) has held as under:

"55. Having participated in the interview, the private respondents cannot challenge the Office Memorandum dated 12-10-2014 and the selection. On behalf of the appellants, it was contended that after the revised Notification dated 12-10-2014, the private respondents participated in the interview without protest and only after the result was announced and finding that they were not selected, the private respondents chose to challenge the revised Notification dated 12-10- 2014 and the private respondents are estopped from challenging the selection process. It is a settled law that a person having consciously participated in the interview cannot turn around and challenge the selection process."

9) It is also to be noted that the petitioners failed to challenge the

MOS dated 29.04.2014 as well as dated 02.12.2021 to the extent they

stipulate the 'Effect of the Scheme'. For better adjudication, they are

extracted hereunder:

Para 6 of MOS dated 29.04.2014 states "The Scheme as agreed upon in this settlement will be effective from the panel year 2014 and will be in force for next five years i.e. till the panel year 2018 after which the scheme will be reviewed by mutual consent".

Para 6 of MOS dated 02.12.2021 states "The Scheme as agreed upon in this settlement will be effective from the panel year 2021 and will be in force for next five years i.e. till the year 2026 after which

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the scheme will be reviewed by mutual consent. Accordingly, next examination will be conducted for the calendar year 2021."

10) The above portions of MOS dated 29.04.2014 and 02.12.2021

clearly stipulate the panel years covered thereunder and there is no

whisper of the panel years 2019 and 2020. Therefore, the petitioners

cannot seek the present relief without challenging the above said

MOS. Therefore, this Court does not find any merit in the present

writ petition.

11) Coming to the judgments relied by the petitioners, they are

distinguishable on facts on the ground that in this writ petition the

petitioners have not challenged the MOS and therefore the said

judgments are of no avail to the petitioners.