Prem Parkash Pahwa vs United Commercial Bank And Anr.Uco Bank

PREM PARKASH PAHWA ... APPELLANT

Versus

UNITED COMMERCIAL BANK

& ANR. ... RESPONDENTS

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1. Delay condoned.

2. Leave granted.

3. This appeal, by grant of special leave, is directed

against the judgment and order dated 25/8/2009 passed by

the Punjab & Haryana High Court dismissing Civil Regular

Second Appeal No.145 of 1986 filed by the appellant.

2 4. Respondent 1-Bank holds tests for promotion to the

officers grade. It has framed rules for examination for

promotion to the officer's grade. Under the rules, marks are

awarded to written tests, interviews and qualifications, etc.

The rules reflect the policy and procedure of respondent 1,

inter alia, for promotion to the officer's grade and, hence,

are described as the `Promotion Policy'.

5. The appellant, who is appearing in person, joined the

service of respondent 1 in the year 1973 as a Stenographer

in clerical cadre. He passed his graduation in the year 1973

from the Punjab University. He obtained Diploma in Office

Organization and Procedures in the year 1979 from the said

university. It is a `Post Graduate Diploma" recognized by

the Academic Council of the Punjab University. Respondent

1-Bank conducted examination in the year 1979 for

promotion to the officers grade. According to the appellant,

weightage of three (3) marks was given to him as per the

Promotion Policy of respondent 1 for the year 1975, which

3

was in vogue at that time as he had obtained Diploma in

Office Organization and Procedures. But, the appellant could

not qualify in the said exam because he obtained less marks

under other heads. He again appeared for the same

examination on 17/1/1982. His case is that the Diploma

granted by the Punjab University entitled him to weightage

of three (3) marks as contemplated in Clause 3.1.2 (F)(d)(ii)

of the 1981 Promotion Policy of respondent 1, which held

the field at that time. He was not given weightage of three

(3) marks because he did not possess `Post Graduate

Degree'. The appellant, therefore, filed a suit for declaration

that he is entitled to the weightage of three (3) marks as he

possessed `Post Graduate Diploma'. In view of Clause 3.1.2

(F)(d)(ii) read with foot note (b) of Chapter (1) of the 1981

Promotion Policy of respondent 1, the trial court decreed the

suit and held that he was entitled to weightage of three (3)

marks. The lower appellate court set aside the said decree.

The High Court upheld the order of lower appellate court.

Hence, this appeal, by special leave.

4 6. We have heard the appellant, at some length and also

learned counsel for the respondents.

7. We are concerned with interpretation of Clause 3.1.2

(F)(d)(ii) read with foot note (b) of Chapter (1) of the 1981

Promotion Policy of respondent 1. For better appreciation of

the appellant's contention, it is also necessary to have a look

at the relevant provisions of the Promotion Policy of

respondent 1 of the years 1975, 1981 and 1988.

8. Clause III B(4)(d) of Chapter 1 of Part I of the 1975

Promotion Policy of respondent 1 reads as under :

"PART - I

CHAPTER 1 - PROMOTION TO OFFICER'S CADRE

III. PROMOTION TO THEBANK'S OFFICERS' CADRE:

A. xxx xxx xxx

B. Written Test and Interview.

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) xxx xxx xxx

5

(4) Allocation of the marks for the written test,

interview, length of service and qualifications.

Particulars Maximum

Marks

Allotted

(a) Written Test 25

(b) Interview 15

(c) Length of service in the clerical

cadre

(2 marks of each complete - see

Note under sub-para (ii) above- 40

subject to a maximum of 40 marks).

(d) Qualifications:

(i) Graduation from a recognized

University 6

(ii) Institute of Bankers

Examination :

Part - I 3

Part - II 6

(iii) Double graduation or Master's

Degree, from a recognized

University or a Post-graduate 3

Diploma of a recognized

University or Institute.

(iv) Graduation in commerce from

a recognized University with

50% or over of average 2 20

marks.

......... .........

100

.........

Thus, as per 1975 Promotion Policy, a person holding

Post Graduate Diploma of a recognized university or

Institute was entitled to weightage of three (3) marks while

6

considering his case for promotion to the Bank Officer's

Cadre.

9. Clause 3.1.3 F(d) of the 1981 Promotion Policy reads as

under:

"CHAPTER - I

1. PROMOTION TO OFFICER'S CADRE

2. xxx xxx xxx

3. Promotion to the Bank's Officer's Cadre:

3.1.1 xxx xxx xxx

3.1.2 xxx xxx xxx

3.1.3 (A) xxx xxx xxx

(B) xxx xxx xxx

(C) xxx xxx xxx

(D) xxx xxx xxx

(E) xxx xxx xxx

(F) Allocation of marks for the written test,

interview, length of service and qualifications shall be as

under :

Particulars Maximum

Marks

Allotted

(a) Written Test 40

(b) Interview 10

7

(c) Length of service in the clerical

cadre

(2 marks for each completed year of

service - see Note under sub-para 30

(ii) of para 3.1.2 above, subject to a

maximum of 30 marks).

(d) Educational Qualifications:

(i) Graduation from a recognized

Universities 6

(ii) Post Graduates/Double

Graduates from recognized 3

Universities/Institutes.

(iii) Indian Institute of Bankers

Examination :

Part - I ... 3

Part - II ... 6

(iv) All Honours Graduates/Cost

Accountants or Graduates /

Post Graduates having 50%

marks or more in the 2 20

aggregate.

Note: (a) No candidate would get more than 20

marks for educational qualifications.

(b) Degrees, Diplomas should be from

recognized Universities/Boards and

Institutes recognized by the Government of

India.

(c) In proof of educational qualifications

original certificate issued by appropriate

concerned authorities will have to be

produced.

Thus, from Clause 3.1.2(F)(d)(ii) of the 1981 Promotion

Policy, the words `Post Graduate Diploma' have been deleted

but there is a reference to `Diploma' in Note (b).

8 10. Clause 3.6.1.(d) of the 1988 Promotion Policy reads as

under :

"PART II

CHAPTER - 1

3. PROMOTION FROM CLERICAL CADRE TO

OFFICER'S CADRE IN BANK'S JUNIOR MANAGEMENT

GRADE SCALE-I.

3.1 xxx xxx xxx

3.2 xxx xxx xxx

3.3 xxx xxx xxx

3.4 xxx xxx xxx

3.5 xxx xxx xxx

3.6 MODE OF SELECTION :

3.6.1 Merit-cum-Seniority Channel:

Under Merit-cum-Seniority Channel, there will be

assessment of 100 marks distributed in the following

manner:

(a) Written test to be conducted by the

Institute of Banking Personnel

Selection (IBPS) (model

questions/syllabus will be given 55 marks

before the test).

(b) Service (2 marks for each completed

year of service as assessed vide 25 marks

para 3.4.3 above with a maximum

of 25 marks.)

9

(d) Educational Qualification: 20 marks

(i) Graduation from a recognized

University 6

(ii) Post Graduate/Double

Graduate from recognized 3

University.

(iii) CAIIB Examination of Indian

Institute of Bankers :

Part - I ... 3 Part - II ... 6

(iv) Honours Graduate /

Graduate / Post Graduate

from recognized University

having 50% marks or more in 2

the aggregate. ....

20

Thus, the 1988 Promotion Policy keeps out `Diploma'

holders. It is stated by counsel for respondent 1 that a

`Diploma' holder is not entitled to weightage of three (3)

marks as per this policy.

11. The appellant pointed out that he is concerned with

1981 Promotion Policy. Though Clause 3.1.2(F)(d)(ii) of the

1981 Promotion Policy states that only Post

Graduates/Double Graduates from recognized

Universities/Institutes are entitled to weightage of three (3)

marks, Note (b) thereunder clarifies that Degrees, Diplomas

10

should be from recognized Universities/Boards and Institutes

recognized by the Government of India. Thus, the note

explains that persons holding `Diploma' from recognized

University/Board and Institute would be entitled for

weightage of three (3) marks.

12. Counsel for respondent 1 submitted that Note (b) to

Clause 3.1.2(F)(d)(ii) of the 1981 Promotion Policy is an

inadvertent error. The fact that from Clause 3.1.2(F)(d)(ii)

of the 1981 Promotion Policy, the word `Diploma' is excluded

as an educational qualification, which was there in the year

1975 Promotion Policy, indicates that the intention was not

to give weightage of three (3) marks to `Diploma' holders.

It was pointed out that this argument is supported by the

fact that in the 1988 Promotion Policy, a `Post Graduate' or

`Double Graduate' is entitled to the benefit of weightage of

three (3) marks and Note (b) to Clause 3.1.2(F)(d)(ii) of the

1981 Promotion Policy does not include the term

`Diploma'.

11 13. It is not possible for us to accept the respondents' case.

We have already quoted the relevant provisions of 1975

Promotion Policy. Under that policy, a `Double Graduate' or

a person holding `Master's Degree' from a recognized

University or a `Post Graduate Diploma' of a recognized

University or Institute was entitled to get weightage of three

(3) marks. Though from Clause 3.1.2(F)(d)(ii) of the 1981

Promotion Policy, the word `Diploma' of a recognized

University and Institute is omitted, Note (b) thereunder

states that Degrees, Diplomas should be from recognized

Universities/Boards and Institutes recognized by the

Government of India. Note (b) cannot be dismissed as an

inadvertent error. It has a meaning. It is not superfluous.

Notes under the rules cannot control the rules but they can

provide aid for interpretation of those rules. It must be

borne in mind that the note in the instant case is made

contemporaneously with the rules. It is a part of the rule.

It is not inconsistent with the rule but makes explicit what is

implicit in the rule. It is not as if by mistake Note (b) was

12

lifted from 1975 Promotion Policy, because 1975 Promotion

Policy did not contain any Note under Clause 3.1.2 (F)(d).

Pertinently, 1988 Promotion Policy, inter alia, specifically

states that `Post Graduate' or `Double Graduate' of a

recognized university are entitled to weightage of three (3)

marks, but in the Note under the said clause, there is no

reference to `Diploma'. Therefore, 1988 Promotion Policy, as

stated by counsel for respondent 1, clearly keeps the

diploma holders out. In the circumstance, we cannot view

the word `Diploma' found in Note (b) under Clause 3.1.2(F)

(d)(ii) of the 1981 Promotion Policy as a clerical mistake or

inadvertent error and ignore it. In our opinion, therefore,

the High Court was clearly in error in holding that the

intention of the 1981 Promotion Policy was to grant

weightage of three (3) marks only to `Degree' holders.

14. Respondent 1-bank has urged in its written statement

that the word `Diploma' mentioned in Note (b) could be

linked to Clause 3.1.2(F)(d)(iii) which refers to Indian

Institute of Bankers' Examination Part I and Part II. Nothing

13

prevented the rule makers from making it clear by

specifically linking the two. We are informed that Indian

Institute of Bankers has `Certificate courses' and it also has

`Diploma courses'. But, in the absence of clear statement to

that effect in Clause 3.1.2(F)(d)(iii), it is not possible to

arrive at this conclusion.

15. In our opinion, relevant Clause 3.1.2(F)(d)(ii) of the

1981 Promotion Policy is not happily worded or rather it is

worded in a manner which would create confusion rather

than help the aspirant. In such a situation, in our opinion, it

will have to be interpreted in favour of the appellant bearing

in mind the fact that at one point of time, as per 1975

Promotion Policy, he was, in fact, given weightage of three

(3) marks as he possessed `Diploma in Office Organization

and Procedures of a recognized university. Unfortunately,

he did not get the necessary marks under other heads and,

hence, he could not get benefit of those three (3) marks.

The appellant has, thereafter, bona fide prosecuted these

proceedings since 1979. The appellant joined respondent 1

14

in the year 1973. Considering the peculiar circumstances of

this case, we think that interests of justice would be served

if weightage of three (3) marks is given to him in the

examination conducted on 17/1/1982.

16. We, therefore, set aside the impugned judgment and

order and hold that the appellant is entitled to weightage of

three (3) marks while considering him for promotion to the

Bank Officer's Cadre in Officer's Grade examination held in

1982 in view of the fact that he possessed Post Graduate

Diploma in Office Organization and Procedures from Punjab

University, Chandigarh, which is a recognized University.

The appeal is allowed.

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

(AFTAB ALAM)

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

(RANJANA PRAKASH DESAI)

NEW DELHI,

NOVEMBER 14, 2011.