K.M.Mishra vs Central Bank Of India & Ors

K. M. Mishra ... Appellant

Versus

Central Bank of India & Ors. ... Respondents

JUDGMENT

AFTAB ALAM, J.

1. Leave granted.

2. A dispute over promotion to the post of Chief Manager, Rajbhasha in

Senior Manager Grade, Scale IV in the Central Bank of India has brought

this matter to this Court. Respondent No.5 was granted promotion to the

post on 19 May 1997 in preference to the Appellant. He challenged the

promotion given to the respondent before the Bombay High Court in Writ 2

Petition No. 1412 of 1997. The High Court dismissed the writ petition by

judgment and order dated 24 November 2006. This appeal is filed against

the judgment of the High Court.

3. It would be useful to state at the beginning certain basic facts that are

admitted or are, at any rate, undeniable as that would keep us from straying

into issues that have no relevance to the dispute giving rise to this appeal.

The promotion from Middle Management Grade (Scale III) to Senior

Management Grade (Scale IV) is made on the principle of merit-cum-

seniority from among officers who have completed five years' satisfactory

service in MMG scale III. The Bank's Promotion Policy for Officers in

clause 3.3 provides as follows.

"3.3. Promotion from Middle Management Grade Scale III to Senior Management Grade Scale IV -- For promotion from Middle Management Grade Scale III to Senior Management Grade Scale IV, an officer should have completed a minimum of 5 years of satisfactory service in Middle Management Grade Scale III."

The selection from among the eligible candidates, i.e., officers who have

completed the qualifying service of five years in MMG Scale III is made on

the basis of an interview and annual Performance Appraisal Ratings for

three preceding years. For the promotion in question, the appellant and

respondent no. 5, both of whom had completed five years' qualifying 3

service in MMG Scale III were assessed in the same way. In the interview

both the appellant and respondent No.5 were awarded 30 marks. In the

annual PARs, however, though the appellant had `Very Good', same as

respondent no.5 for the year 1994-95, for the other two years 1995-96 and

1996-97 he had only `Good' against `Very Good' obtained by respondent

no.5. The remark `Very Good' carried 32 marks and `Good' 24 marks. Thus

the Performance Appraisal Ratings of the appellant averaged out to 26.6 and

that of respondent No.5 to 32. In this way, out of 100 the appellant had 56.6

marks as against 62.0 secured by respondent No.5. Respondent No.5 was

accordingly selected and promoted to the post.

4. The appellant after unsuccessfully challenging the promotion granted

to respondent no.5 before the Bombay High Court has brought the matter to

this Court.

5. From the judgment coming under appeal, it appears that before the

High Court the promotion granted to respondent No.5 was assailed on one

of the grounds that respondent No.5 did not possess the requisite

educational qualifications. It was stated before the High Court that there

were three options in regard to educational qualifications and respondent

No.5 came in the third option that required a second class Master's degree

in Economics/Commerce in Hindi medium with English as an elective 4

subject at Bachelor's degree level. It was submitted before the High Court

that respondent No.5 did not fulfil the requirement of educational

qualifications and he was wrongly given the promotion. The High Court

considered the submission and rejected it holding that respondent No.5 duly

fulfilled the academic qualifications as well. Apparently, however, the High

Court was not informed and it was completely overlooked that the

educational qualifications referred to by the appellant pertained to the entry

level post of Hindi Officer in Scale I.

6. Since the issue of the educational qualifications came under

discussion in the High Court judgment, before this Court it has been vastly

expanded and turned into practically the main plank of attack to the

promotion given to respondent no.5. A number of affidavits have been filed

both by the appellant and respondent No.5 bringing on record his Master's

degree, the Bachelor level marks-sheets and courses of studies etc. of Agra

University (from where respondent No.5 took his Graduation and Master's

degrees). On the basis of the affidavits and the enclosed documents, the

appellant seeks to contend before the Court that though satisfying the first

part of the educational criteria of having a Master's degree in Commerce in

Hindi medium, respondent no.5 did not have English as an elective subject

at the Bachelor degree level. Mr. A. K. Srivastava, learned senior advocate, 5

appearing for the appellant set forth before the Court in great detail the

various documents obtained from the Agra University contending that the

claim of respondent no. 5 that he had elective English at the Bachelor's

level was not borne out from the University documents. Needless to say that

on behalf of respondent No.5 it is equally strenuously argued that he fully

satisfied the educational criteria and he had English as one of the subjects at

the Graduate level.

7. In our considered view the matter of educational qualification of

respondent No.5 is a non-issue insofar as his promotion to SMG Scale IV is

concerned. As noted above, the educational qualifications referred to by the

appellant pertain to the entry level post of Hindi Officer Scale I. The

appellant was promoted as Hindi Officer Class I in 1976 and respondent

No.5 came to join that post in 1978. Later on both of them were promoted

to scales II and III and it was after about 20 years of entry into service that

both of them came up for consideration for promotion to SMG Scale IV.

Even while the selection process was going on the appellant did not raise

this objection before the Bank management. The objection was taken for

the first time before the High Court and at that stage too it was not made

clear that the educational qualifications were not relevant for the promotion

in question but that pertained only to the entry level post. At this stage, 6

therefore, we are completely disinclined to go into the question of the

educational qualification of respondent No.5, more so since it is not at all

conclusive or clear that respondent No.5 did not have English as one of the

elective subjects at the Graduation level.

8. This takes us to consider the second objection raised on behalf of the

appellant with regard to being given `Good' as his Performance Appraisal

Ratings for the years 1995-96 and 1996-97. It is stated by the appellant that

on the retirement of Mr. R. V. Tiwari, Assistant General Manager (Hindi

Department) on 1 February 1993, he was asked to take over as Head of the

Hindi Department on officiating basis; at that time he was in MMG Scale

III. In that position, from 1 June 1993 he was asked to report directly to the

General Manager. On the retirement of Mr. Arjun Bhaya, General Manager,

Hindi Cell, one Mr. S.C. Unhelkar, Chief Manager (System and Procedure)

from the main stream of the Bank was posted as Chief Manager, Rajbhasha

on 1 April, 1996. The appellant objected to the posting of Mr. Unhelkar as

he was from the main stream and his posting in Rajbhasha was in violation

of the Government guidelines. Similar objections were also raised by the

Central Bank Officers' Association. It is further stated on behalf of the

appellant that for the years 1995-96 and 1996-97 his Performance Appraisal

Ratings were given by Mr. Unhelkar and he gave him the rating `Good' for 7

those two years. In fairness to the appellant it must be noted that he does not

allege any mala fide on the part of Mr. Unhelkar but Mr. Srivastava argued

that the appellant's performance appraisal for the two years in question by

Mr. Unhelkar was in breach of the guidelines provided under the

Performance Appraisal System of Officers of the Central Bank of India.

9. From the guidelines it appears that appraisals are to be made annually

on calendar year basis, i.e., for the period from January to December. It is a

two tier process in which the officer concerned makes his own appraisal and

submits it to his Reporting Officer. The remarks given by the Reporting

Officer are finally reviewed by the Reviewing Officer. Clause 3 of the

Guidelines provides that in case the concerned officer does not submit his

self-appraisal within one month of receiving the format, the Reporting

Authority would have the right to submit his report concerning the officer to

the Reviewing Authority. Clause 6 of the Guidelines provides that if a

Reporting/Reviewing Authority is to retire on a specified date, care should

be taken to ensure, as far as practicable, that appraisals of the officers

working under him are taken before his retirement. Much reliance was

placed on behalf of the appellant on Clause 4 of the Guidelines that

provides as follows:

"It should be ensured that the Appraisee has worked under both Reporting and Reviewing Authority for a 8

minimum period of six months before he is appraised by them. If it is not so, the appraisal form of the officer concerned should be sent to the previous Reporting/Reviewing Authority under whom he has worked for six months or more."

(emphasis added)

10. Mr. Srivastava submitted that in both the calendar years 1995-96 and

1996-97 the appellant had worked under Mr. Unhelkar for less than six

months and hence, he was not competent or authorised to give any appraisal

ratings to the appellant. The appellant had worked under Mr. Unhelkar from

9 September, 1996 to 9 March, 1997; in other words in the year 1996 he

worked under Mr. Unhelkar for about four months and in 1997 for only

three months. Mr. Srivastava also placed before us the appellant's

performance appraisals during his service tenure. It appears that right from

1984 to 1994 his ratings were `Excellent'. In 1995 he was given `Very

Good'. In 1996 the Reporting Authority gave him `Good' and the

Reviewing Authority `Very Good' but the overall rating came down to

`Good'. In 1997 both the Reporting and Reviewing Authorities gave him

`Good'. In 1998 the rating once again picked up to `Very Good'.

11. The position in this regard is clarified in the counter affidavit filed by

the Bank. In the Bank's counter affidavit it is stated that in the year 1994-

95, the appellant duly submitted his self-appraisal before Mr. Bhaya who 9

was the General Manager at that time. But in 1995-96, the appellant did not

submit his self-appraisal in time and though in terms of Clause 3 of the

Guidelines Mr. Bhaya could give his appraisal rating concerning the

appellant he did not do so till his retirement. The appellant submitted his

self-appraisal for two years 1995-96 and 1996-97 after Mr.Bhaya had

already retired from service and thus it fell upon Mr. Unhelkar to write the

appellant's Performance Appraisal Ratings for the two years. It is true that

in the year 1996 Mr. Unhelkar was the appellant's Reporting Officer for less

than six months but in the circumstances, for which the appellant himself

was responsible to a great extent, his work appraisal could only be made by

Mr. Unhelkar. It is further pointed out that in both years 1995-96 and 1996-

97 Mr. Tiwary was the Reviewing Authority under whom the appellant had

worked for a very long period and against whom he did not have any

objection.

12. Mr. L.N. Rao, senior counsel appearing for the Bank, submitted that

though in the year 1996 Mr. Unhelkar was the appellant's Reporting Officer

for less than six months, by the time the appraisal rating for the year 1997

was written the appellant had already worked under him for more than six

months. The Performance Appraisal Rating of the appellant given for the

year 1996-97 was thus beyond any objection. He further submitted that even 10

if the Performance Appraisal Rating for the year 1995-96 is excluded for

both the candidates the position would still remain the same as the appellant

would have only a `Good' remark as against the `Very Good' remark for

respondent No.5 for the year 1996-97.

13. On a careful consideration of the rival contentions we find no

substance or merit in the appellant's objections regarding his Performance

Appraisal Ratings for the three years in question.

14. Mr. Srivastava then submitted that in the preceding years the

appellant had `Excellent' ratings and in the year 1995 he had `Very Good'.

The rating `Good' for the year 1996-97 was thus a climb down and it was

incumbent upon the authorities to intimate the appellant about his ratings

for the two years in question. Since no intimation was given to the appellant

the ratings for those two years should not have been taken into account and

instead the ratings for the earlier years should have been considered for the

purpose of promotion.

15. We are unable to accept the submission. In Satya Narain Shukla vs.

Union of India & Ors., 2006 (9) SCC 69 (81) it was held and observed as

follows :

"The appellant also argued that the remarks made in the ACR were not communicated to him. It was also urged by the appellant that this Court should direct the authorities to streamline the whole procedure so that even remarks like "good" or "very good" made in ACRs 11

should be made compulsorily communicable to the officers concerned so that an officer may not lose his chance of empanelment at a subsequent point of his service. In our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection. We can only examine if the procedure for selection as adopted by the Government in unconstitutional or otherwise illegal or vitiated by arbitrariness and mala fides."

16. On hearing counsel for the parties and on a careful consideration of

the materials placed on record we find no merit in the appeal and it is

accordingly dismissed. In the facts and circumstances of the case there shall

be no order as to costs.

....................................J.

[Tarun Chatterjee]

....................................J.

[Aftab Alam]

New Delhi,

September 16, 2008.

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