Pragiyotish Gaonlia Bank & Anr vs Brijlal Das

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 977 OF 2009

(Arising out of Special Leave Petition (Civil) NO.1248 of

2007)

Pragjyotish Gaonlia Bank

(now known as Assam Gramin

Vikash Bank) & Anr. ... Appellants

Vs.

Shri Brijlal Das ... Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2 2. The appellant Bank, which is a rural bank and is

governed by the circulars issued from time to time by the

National Bank for Agriculture and Rural Development

(hereinafter referred to as `NABARD`), has challenged the

decision of the Division Bench of the Gauhati High Court,

allowing Writ Appeal No. 518 of 2002, and directing the

appellant Bank to issue necessary orders for giving effect of

promotion to the respondent No.1, Brijlal Dass, to the

Officer Scale II Grade from the date his juniors in the Grade

of Officers Scale I i.e. respondent Nos. 17, 18 and 19, were

promoted to the Officers Scale II.

3. In 1997 the appellant Bank categorised 17 additional

Scale I branches as additional Scale II branches. The Bank,

therefore, proposed to promote 17 Officers of the Scale I

Grade to the Grade of Officers Scale II and issued a Circular

to that effect on 10.6.2007. As per the eligibility criteria,

all officers, who had put in minimum service of 8 years in

the Officers' cadre as on 31.12.1996, were eligible to appear

for an interview for internal promotion. The total number of

candidates would be restricted to 4 four times the number of

vacancies. It was decided by the Bank that such promotion

would be on the basis of merit-cum-seniority, and that out of

a maximum of 150 marks 40 marks were set apart for the number

of years in service. The remaining 110 marks were allocated

3

towards performance at the work place and in the interview,

indicating that the selection procedure was to be on the

basis of merit-cum-seniority.

4. The case of the appellant Bank is that no reservation

had been provided for Scheduled Castes and Scheduled Tribes

candidates in the matter of promotion by selection from Scale

I to Scale II and from Scale II to Scale III posts in

Regional Rural Banks, and that candidates were generally

subjected to interview /written tests. However, in order to

provide some benefit to Scheduled Castes and Scheduled Tribes

candidates a concession was included in the Circular dated

10.6.1997 which was in keeping with certain conditions which

had been provided by the Circular dated 9.11.1994 issued by

NABARD and also certain other Government Circulars. The said

concession is set out hereinbelow:-

"Reservation Posts:-

The scheduled castes and scheduled tribes

Officers, who are senior enough in the zone of

consideration for promotion so as to be within the

number of vacancies for which the select list has

to be drawn up would be included in the list

provided they are not considered unfit for

promotion."

5. In terms of the said concession, officers belonging to

Scheduled Castes and Scheduled Tribes, falling within the

number of vacancies from the list drawn up on the basis of

4

seniority, would be promoted to the Officers Scale II Grade

automatically, provided they were not unfit for promotion.

6. At this stage it may be indicated that since 17

vacancies were available, 68 candidates were called for

interviews for filling up the said 17 vacancies. The

respondent No.1 did not fall within the first 17 names in the

aforesaid list but was placed at S.No.39 as per his

seniority. As a result, though, he was called for interview,

he was not automatically selected for promotion to the Scale

II grade.

7. The respondent No.1 and one Shri Nagendra Chander Dass,

both of whom figured in the list of 68 eligible candidates

and were within the zone of consideration, were called for

the interview but were not found fit for promotion. They,

accordingly, filed Civil Writ Petition No.1601 of 1998 for

quashing the abovementioned Circular dated 15.9.1997 issued

by the Bank on the basis whereof the successful candidates

have been promoted and also prayed that since both of them

belong to the Scheduled Caste community they should have been

appointed against the reserved posts and that the reservation

policy followed by the Bank was contrary to the reservation

policy followed by the Government of Assam.

8. The learned single Judge disposed of the writ petition

5

on 17.7.2002, without expressing any opinion with regard to

Nagender Chander Dass as he had been promoted in the month of

February 2000, after he succeeded in the promotion test held

on 15.2.2000 during the pendency of the writ petition. While

disposing of the writ petition the learned single Judge while

taking note of the fact that the respondent No.1 had been

punished in a disciplinary proceeding erroneously noted the

dates when the punishment was imposed and when it came to an

end. Instead of indicating that the punishment awarded to the

respondent No.1 whereby 5 increments had been stopped w.e.f.

1992 and ending in 1997 the learned single Judge observed

that the punishment had been imposed in 1995 and it came to

an end in the year 2000. The importance of the said error

would be evident from the fact that whereas the punishment of

respondent NO.1 came to an end in March 1997, the

Departmental Promotion Committee meeting was held on

15.9.1997 and on that date the learned single Judge found

that respondent No.1 was eligible for promotion since the

period of punishment was already over, and directed that the

respondent No.1's promotion should be considered by the bank

along with other eligible candidates as and when the next

promotion was considered by the authorities. This lapse on

the part of the single Judge was used to his advantage by the

respondent in preferring an appeal before the Division Bench

6

of the Gauhati High Court. The Division Bench without going

into the question of eligibility, apart from the aforesaid

error in noting the dates relating to the punishment order of

2001 set aside the order of the single Judge dismissing the

writ petition and allowed the writ appeal with direction to

appoint the respondent No.1 in the Officers' Scale Grade II

from the date his juniors in the cadre of Officers Scale I

had been promoted to the higher scale.

9. The Bank has filed the present appeal against the

aforesaid order of the Division Bench and has in particular

challenged the direction given to the Bank to promote the

respondent No.1 to the Officers Grade Scale-II.

10. Appearing for the appellant Bank, Mr. Dhruv Mehta,

submitted that the Division Bench of the High Court had

decided the appeal on an erroneous understanding of the issue

involved. Mr. Mehta submitted that without applying its mind

to the facts of the case, the Division Bench simply repeated

the findings of the learned single Judge. The Division Bench

lost sight of the fact that first of all the question of

eligibility for being considered for promotion had to be

cleared before clearing the cases of the candidates who had

been called for the interview could be taken up for

consideration. Mr. Mehta emphasised the fact that no

7

reservation was provided for in respect of the 17 vacancies

and only a concession had been made which is reflected in the

circular dated 15.9.1997 issued by the bank for making the

promotions in the vacancies to the post of Officer Scale II.

The relevant portion of the circular dated 10.6.1997

regarding reservation posts has been extracted hereinbefore

and according to Mr. Mehta the same was not for the purpose

of reservation of posts as such, but for providing a benefit

or concession to a Scheduled Castes or Scheduled Tribes

candidate in the matter of promotion subject to eligibility.

Mr. Mehta submitted that the respondent No.1 and Shri

Nagendra Chander Dass were within the seniority which brought

them into the zone of consideration and enabled them to

appear in the interview, but on the strength of their

performance they were not considered eligible to fill up any

of the vacant 17 posts. Mr. Mehta urged that had they been of

sufficient seniority they would have been included in respect

of one of the 17 vacancies which would have entailed them to

be automatically included within the available number of

vacancies for automatic appointment. Mr. Mehta urged that

this was the extent of reservation as was contemplated in the

Bank's circular dated 10.6.1997. In other words, it was not

the post which was sought to be reserved but any of the

available post could have been filled in by a Scheduled

8

Castes or Scheduled Tribes candidate if he was found eligible

according to the norms. Having been placed at the 39th

position in the list of candidates who were to be interviewed

for the vacant 17 posts, the respondent No.1 was duly

interviewed but he did not clear the requisite number of

marks which would have made him eligible for being

automatically promoted and appointed.

11. Mr. Mehta urged that this point had been completely

misunderstood or overlooked by the Division Bench while

allowing the writ appeal and also directing the bank to give

appointment to the respondent No.1. It was submitted that the

same was contrary to the Policy of the appellant and, if

followed could have serious consequences not only for the

respondent No.1 herein, but also for all those who had

already been appointed against the vacancies in question.

12. Referring to a three-Judge Bench decision of this Court

in National Federation of S.B.I. v. Union of India [1995) 3

SCC 532] Mr. Mehta submitted that the provisions similar to

that of the Circular dated 10.6.1997 had fallen for

consideration and the same had been very lucidly explained to

mean that the list of eligible candidates for consideration

for filling up the vacancies is but another name for `the

zone of consideration' referred to in the circular of the

9

bank dated 10.6.1997, where as those candidates who came

within the preferred requisite vacancies would be

automatically given the benefit of promotion without any

further process of selection. In other words, if the

Scheduled Caste or Scheduled Tribe candidates, on the basis

of the marks awarded came within the first 17 vacancies he

would not be subjected to any further selection process but

would be automatically granted promotion which would not be

the case with candidate from the general category. The

respondent No.1 having been placed at serial no. 39 was

entitled to be called for interview, but Mr. Mehta submitted

that the said concession in the Circular dated 10.6.1997

would not apply to him since he was not within the first 17

candidates which would have entitled him to automatic

selection. Mr. Mehta urged that the direction given by the

Division Bench of the High Court was contrary to the

concession contained in the Circular dated 10.6.1997 and was

liable to be set aside, having regard to the fact that

Regional Rural Banks were governed by the Regional Rural

Banks Act, 1976, and the circulars issued by NABARD and not

by the State Government. Furthermore, having once submitted

to the selection process and having proved unsuccessful the

respondent No.1 was not entitled to challenge the selection

process as was held by this Court in the case of G.N. Nayak

10

v. Goa University and others [(2002) 3SCC 712].

13. On the other hand, it was urged by Mr. Manish Goswamy,

learned advocate for the respondent, that the claim of the

appellant Bank was erroneous and the matter had been

considered by the Division Bench in its correct perspective

and did not warrant any interference. It was urged that the

question of reservation had been categorically included in

the circular dated 10.6.1997 issued by the Bank in order to

provide for reservation and by not following the said

directions, the appellant Bank had erred in negating the

claim of the respondent No.1.

14. Mr. Goswamy submitted that the provisions for promotion,

as engrafted in the Circular dated 10.6.1997, was to benefit

candidates from Scheduled Castes and Scheduled Tribes coming

within the zone of consideration and was not confined only to

candidates who came within the number of vacancies.

15. Replying to Mr. Mehta's contentions, Mr. Goswamy

submitted that the respondent was the lone Scheduled Caste

candidate amongst all the candidates and since no roster was

maintained and no post was reserved within the 17 vacancies

available, at least one post out of the 17 vacancies should

have been reserved for a Scheduled Caste candidate, in view

of the fact that at least 7 per cent of the vacancies was

11

required to be kept reserved according to the reservation

policy of the State Government. It was also pointed out that

even if the Assam Scheduled Castes and Scheduled Tribes

(Reservation of Vacancies in Service and Posts) Act, 1978,

was held not apply to the Regional Rural Development Banks

which are governed by NABARD and Central Government

circulars, in view of the policy of reservation indicated

both in the NABARD Circular dated 9.11.94 and the Bank's

Circular dated 10.6.1997, the Respondent No.1 was entitled to

be appointed against one of the 17 vacancies.

16. Having carefully considered the submissions made on

behalf of the respective parties, we are inclined to agree

with Mr. Mehta that the provision relating to reservation

posts, extracted hereinabove, contained in the Circular dated

10th June, 1997, has been wrongly interpreted by the Division

Bench of the High Court. The said condition is in the nature

of a concession as was contemplated in the circular dated 9th

November, 1994, issued by NABARD in order to give an

opportunity to a Scheduled Caste or Scheduled Tribe candidate

to be automatically appointed, if he came within the number

of vacancies available. It was a concession to enable such a

candidate to avoid the process of selection, which all the

other candidates were required to undergo.

12 17. The said provision has been very elaborately explained

by the Three-Judge Bench of this Court in National Federation

of S.B.I. v. Union of India (supra). As has been explained

in the said judgment, the zone of consideration is the list

of selected candidates chosen in order of seniority to be

considered for the purpose of filling up the available

vacancies and merely by coming within the zone of

consideration a Scheduled Caste or Scheduled Tribe candidate

would not be entitled to automatic selection. The concession

relating to reservation does not mean that any of the vacant

posts were required to be kept reserved for such Scheduled

Caste or Scheduled Tribe candidate. It is only when such a

candidate came within the number of vacancies that such a

concession would be applicable to him/her for appointment

without going through the selection process. In the instant

case, the Respondent No.1 was at Serial No.39 and did not,

therefore, come within the number of available vacancies and,

consequently, he had to compete with all the other candidates

for being selected for one of the vacancies. The High

Court's understanding that as a Scheduled Caste candidate,

the petitioner, was entitled to be considered for one of the

vacancies, is, therefore, erroneous since the provision

relating to the aforesaid concession does not contemplate

such a right in favour of a Scheduled Caste or Scheduled

13

Tribe candidate.

18. The appeal filed on behalf of the Bank must, therefore,

succeed and is allowed. The judgments of both the learned

Single Judge as well as the Division Bench of the High Court

are set aside.

19. There will, however, be no order as to costs.

________________J.

(ALTAMAS KABIR)

________________J.

(MARKANDEY KATJU)

New Delhi

Dated: 13.02.2009.