State
Bank of India & Ors Vs. Yogendra Kumar Srivastava & Ors [1987] INSC 147
(1 May 1987)
DUTT,
M.M. (J) DUTT, M.M. (J) REDDY, O. CHINNAPPA (J) CITATION: 1987 AIR 1399 1987
SCR (3) 115 1987 SCC (3) 10 JT 1987 (2) 477 1987 SCALE (1)937
CITATOR
INFO RF 1991 SC1289 (14)
ACT:
Service
Law State Bank of India Officers (Determination of Terms and Conditions of
Service) Order, 1979: Paragraphs 2(1), 3(h), 7, 8 & 18(5)-Merger of Grade-I
and Grade-II Officers existing on October 1, 1979 into Junior Management
Grade--Probationary Trainee Officers appointed in Grade-I on October 30/31,
1979--Fixation of inter se seniority.
Statutory
Construction Repugnancy--'Definition' Clause--When repugnant to other
provisions.
HEADNOTE:
Consequent
to an agreement between the Executive Commit- tee of the Central Board of the
appellant Bank and its Officers' Federation, in pursuance of the Pillai
Committee Report, the Grade-I and Grade-II Officers discharging managerial and
supervisory functions, were merged into the new Junior Management Grade. It was
agreed that Officers, of Grade-II would be junior to the existing officers of
Grade-I and the seniority list would be prepared accordingly. There- after, in
exercise of powers conferred by sub-s. (1) of s. 43 of the State Bank of India
Act, 1955 the State Bank of India Officers' (Determination of Terms and
Conditions of Service) Order, 1979 was made and brought into force with effect
from October 1, 1979. Paragraph 2(1) of that Order provided that it shah apply
to the existing officers of the Bank and to such employees of the Bank to whom
it may be made applicable. Under paragraph 3(h) the expression "existing
officers" was defined to mean officers in the service of the Bank
immediately prior in the appointed date, i.e., October 1, 1979. Paragraph 7
provided for the placement of existing officers on the appointed date in the
corresponding new grades and scales. Paragraph 8(1) provided for fitment of
existing officers in the new grades, and scales of pay in accordance with
paragraph 7, at a stage corresponding to the existing grade and scale. Under
paragraph 18(5) the seniority among the existing officers was to 116 remain the
same, i.e., the Officers Grade-I were to rank senior to Officers Grade-II.
Certain
Probationary/Trainee Officers, who were appointed by the Bank in Grade-I on
October 30/31, 1979 before the Order was made on December 19, 1979 flied writ
petitions before the Allahabad High Court and some others before the Delhi High
Court claiming seniority over the erstwhile Grade-II Officers, in which it was
contended for the Bank that since the petitioners were not the employees of the
Bank on October 1, 1979, i.e., the appointed date, they could not be given
seniority over the erstwhile Grade-II Officers, who were the 'existing
officers' within the meaning of the expression under paragraph 3(h) of the
Order.
The
Allahabad High Court took the view that the expression 'existing officers' has
to be read as including the Probationary Officers and Trainee Officers, otherwise
a repugnancy between the definition of 'existing officers' and the provisions
of paragraph 7 and 8 of the Order will arise, that the notional date of the
coming into force of the Order, viz., October 1, 1979 is only to protect the
emoluments of the officers and nothing else, and directed the Bank to prepare
the seniority list of its officers accordingly. The Delhi High Court, however,
took a contrary view and dismissed the writ petitions.
In
these appeals by the Bank against the decision of the Allahabad High Court and
Special Leave Petition by the Probationary/Trainee Officers against the
decision of the Delhi High Court, it was submitted for the Probationary/Trainee
Officers in support of their contention that they should be considered as 'existing
officers' within the meaning of paragraph 3(h) of the Order, that the Bank
itself had treated them as 'existing officers' by fitting them to the Junior
Management Grade and giving them a higher start of Rs.960 p.m., that such
fitment had been made by the Bank following the principles laid down in
paragraphs 7 and 8 of the Order, that unless the expression 'existing officers'
is read as including 'Probationary/Trainee Officers', three will be a
repugnancy between the definition of 'existing officers', as contained in
paragraph 3(h) and the provisions of the paragraphs 7 and 8 of the Order, that
the definition of 'existing officers' is only illustrative and not exhaustive,
that the merger of officers of Grade-II and Grade-I into the Junior Management
Grade was only for the purpose of fitment in the higher scale of pay and not
for the purpose of seniority, that they have to undergo tests which were more
stringent than the tests to be undergone by Grade-II Officers and as such
Probationary/Trainee 117 Officers, could not be placed under Officers Grade-II
in the seniority list, and that the Bank had no authority to give retrospective
operation to the Order with effect from October 1, 1979 inasmuch as s. 43 of
the Act under which the Order has been passed, did not authorise the Bank to
pass any such Order with retrospective effect.
For
the Bank it was contended that the order had not been made retrospective, that
all that has been done was that the Officers Grade-I and Grade-II, who were in
the employment of the Bank immediately before October 1, 1979 have been merged
into one category, namely, Junior Management Grade, in terms of the
recommendations of the Pillai Committee, that these Officers were already
employees of the Bank before October 1, 1979 and as such they were 'existing
officers' within the meaning of paragraph 3(h) of the Order, that the
Probationary/Trainee Officers, who were appointed on 30th/31st October, 1979
had no locus standi to challenge the Order or the merger of Officers Grade-I
and Grade-II and that as no order has been passed under paragraph 2(1) of the
Order applying the same to the Probationary/ Trainee Officers, they were
outside the purview of the Junior Management Grade and, as such, were precluded
from challenging the seniority of the erstwhile Officers of Grade-II.
Allowing
the appeals and dismissing the special leave petition, this Court.
HELD:
1. The expression 'existing officers' as defined in paragraph 3(h) of the State
Bank of India Officers' (Determination of Terms and Conditions of Service)
Order, 1979 means officers in the service of the Bank immediately prior to the
appointed date, i.e., October 1, 1979. The Probationary/Trainee Officers who
were appointed by the Bank on 30/31st October, 1979 after the appointed date
could not, therefore, be held to be 'existing officers' within the meaning of
paragraph 3(h) of the Order. [128B; F]
2.
It is incorrect to say that when an employee is fitted to a particular scale of
pay of another cadre, he does not become a member of that cadre. In the instant
case, the Probationary/Trainee Officers were placed in the corresponding scales
of pay in the Junior Management Grade for the purpose of fitment in the new
scales of pay. It may be that such fitment has been made by the Bank following
the principles as laid down in paragraphs 7 and 8 of the Order presumably with
a view to removing any disparity between Officers Grade-I and Officers Grade-II
in the Junior Management Grade, but it cannot be said that they were treated as
existing officers and such fitment was made under 118 paragraphs 7 and 8 of the
Order. The Probationary/Trainee Officers were not in the service of the Bank
immediately prior to the appointed date. As such the Bank could not treat them
as existing officers for the purpose of fitment or giving a higher scale of
pay. [128D-F; B]
3.1
Repugnancy of the definition of any term my arise only if such definition does
not agree with the subject or context of a particular provision. But any action
not in conformity with the provision of the definition clause will not render
the definition of a term repugnant to the subject or context of any provision
of the statute containing that term. [129BC]
3.2
In the instant case, there is no ambiguity in the definition of 'existing
officers', as given in paragraph 3(h) of the Order, nor is it in any way
repugnant to the subject or context of paragraphs 7 and 8. If the Probationary/Trainee
Officers are treated as 'existing officers' it would be doing violence to the
provision of paragraph 3(h). [129B; A]
4.
The definition of 'existing officers' in paragraph 3(h) does not give any
illustration whatsoever. On the contrary, it is quite specific and points to
only one class of officers who were in the service of the Bank immediately
prior to the appointed date and to whom any of the rules, as mentioned in that
paragraph were applicable. [129D]
5.
All the officers of the Bank at the lower level before the Probationary or
Trainee Officers were appointed on 30/31 October, 1979 had agreed that they
would merge into a new grade, and Officers Grade-I would be senior to the
Officers Grade-ii. When two grades of officers are merged into a new grade, the
question of inter se seniority automatically arises and casts a duty on the
employer to fix the seniority. Paragraph 18(5) of the Order lays down that the
seniority among the existing officers will remain the same, that b, the
Officers Grade-I will remain senior to Officers Grade- II. Therefore, it cannot
be said that the merger was only for the purpose of fitment in the higher scale
and not for purposes of seniority. [130B-D; 129F]
6.
The question is not whether the Probationary/Trainee Officers have to undergo
more stringent tests than the tests to be undergone by Grade-H Officers, but
whether the Probationary/Trainee Officers were existing officers or not, that
is to say, whether they were in the employment of the Bank immediately prior to
October 1, 1979. As they were not existing officers, they could not claim
seniority over the Officers of Grade-II. [130FG] 119
7.1
Unless the statute, under which the rules are framed by the rule making
authority, does not specifically authorise the making of rules with
retrospective effect, such authority cannot frame any role with retrospective
effect.
[130H-
131A] Cannanore Spinning and Weaving Mills Ltd. v. Collector of Customs and
Central Excise, Cochin, & Ors., [1970] 2 SCR 830; Income-Tax Officer,
Alleppey v. M.C. Ponnoose & Ors., [1970] 1 SCR 678; Hukam Chand etc. v.
Union of India & Ors., [1973] 1 SCR 896 and Regional Transport Officer,
Chittoor, & Ors. v. Associated Transport Madras (P) Ltd. & Ors., [1980]
4 SCC 597, referred to.
7.2
In the instant case, it cannot be said that the Order was retrospective in
operation. All that has been done by it is that the Officers Grade-I and
Grade-II in the employment of the Bank immediately prior to October 1, 1979
have been merged into one category, namely, Junior Management Grade. Although
the Order was actually published on December 19, 1979, the Officers of the Bank
who were there on or before October, 1, 1979 were aware of the fact that the
Order would be given effect to from October 1, 1979 as agreed to between the
Bank and the Officers' Federation. The appointed date is relevant for the
purpose of applicability of the Order to the Officers who have been there in
the service of the Bank immediately prior to the appointed date.
[131E;
C; 132G-133A] V.T. Khanzode & Ors. vs. Reserve Bank of India & ANR.,
[1982] 4 SCR 411 and Reserve Bank of India v. C.N. Sahasra- naman, [1986]
Suppl. SCC 143, referred to.
8.
The distinction in the status of Officers Grade-I and Grade-II having been
abolished in the instant case, it is apparent that the Probationary/Trainee
Officers being Officers of Grade-I were of the same status and position as the
Officers of Grade-II. Admittedly, the erstwhile Officers of Grade-H were
appointed much earlier than the Probationary/Trainee Officers. They cannot,
therefore, be considered senior to the erstwhile Officers Grade-II.
[134G-135AB]
9.
The Probationary/Trainee Officers have not been brought within the purview of
the new cadre, viz., the Junior Management Grade since no order has been passed
under paragraph 2(1) of the Order applying the same to them. As they are not in
the Junior Management Grade, which is a completely different cadre, they have
no locus standi to challenge any benefit conferred on the Officers of the 120
Junior Management Grade comprising erstwhile Officers Grade-I and Officers
Grade-II as were in the employment of the Bank prior to October 1, 1979. [134F;
CD; 135C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 4 125-28 of 1986. From the Judgment
and Order dated 3.1. 1986 of the Allahabad High Court in Writ Petition No. 422
of 1981, 5900, 4207 and 5899 of 1985.
With
Special Leave Petition (Civil) No. 3371 of 1982.
From
the Judgment and Order dated 22.4.1981 of the High Court of Delhi in Civil Writ
Petition No. 823 of 1981. S.S. Sharma for the Appellants in C.A. Nos. 4 125-28
of 1986. Soli J. Sorabjee and Mrs. Madhu Sikri for the Petition- ers in S.L.P-
No. 3371 of 1982. S.N. Kacker and R.B. Mehrotra for Respondent No. 1 in C.A.
No. 4 125 of 1986. S.P. Gupta and R.B. Mehrotra for Respondent Nos. 2 to 26 in
C.A. No. 4 125 of 1986. Shanti Bhushan and R.P. Kapur for the Respondents in
S.L.P. No. 337 1 of 1982.
The
Judgment of the Court was delivered by DUTT, J. In these appeals by special
leave and in the Special Leave Petition the dispute relates to the seniority of
erstwhile Officers Grade-II and the Probationary/Trainee Officers in the
Grade-I of the State Bank of India.
In
the lower level, the State Bank of India had two categories of officers,
namely, Officers Grade-I and Officers Grade-II; the function of the former was
managerial and that of the latter supervisory. The conditions of service of
these two categories of officers were, admittedly, governed by the State Bank
of India (Supervising Staff) Service Rules, hereinafter referred to as 'the
1975 Rules'.
The
1975 Rules were not framed under the rule making power of the Government, as
conferred by section 49 of the State Bank of India Act, but under section 43 of
the Act, sub-section(1) of which provides that the State Bank may appoint such
number of officers, advisers and employees as it considers necessary or
desirable for the efficient performance of its functions, and determine the
terms and conditions of their appointment and service. Sub--section (2) of
section 43 provides that the officers, advisers and employees of the State Bank
shall exercise such powers and perform such duties as may, by general special
order, be entrusted or delegated to them by the Central Board.
Although
the Officers Grade-I were superior in 'rank to the Officers Grade-II, there was
little difference in the pay scales of these two categories of officers. The
duties, which were to be performed by Officers Grade-I and Officers Grade-II,
were also similar in nature. Indeed, with the expansion of the: banking
activities, a large number of Officers Grade-II were required, to perform managerial
duties which normally were performed by Officers Grade-I.
The
Officers' Federation of the State Bank of India comprising both Officers
Grade-I and Grade-II had been demanding the abolition of the distinction
between these two Grades.
The
Bank, however, had been successfully resisting the demand made by the Officers'
Federation from time to time.
The
Federation had, at one time started taking resort to agitational method in
order to force the Bank to abolish the theoretical distinction between Officers
Grade-I and Officers Grade-II.
In
the mean time, another external factor had crept into the situation. The
Government had appointed a Committee, known as Pillai Committee, for
considering a question of standardisation of pay and allowances of the officers
staff in the nationalised Banks. After the Pillai Committee had submitted its
report, the Government declared its intention to apply the recommendations of
the Pillai Committee to the State Bank of India as well. According to the
recommendations of the Pillai Committee, there should not be any distinction
between Officers Grade-I and Grade-II. The Committee recommended four Grades
for officers and had provided for only one scale at the junior management
level.
Four
Grades of officers are as follows:-
1.
Top Executive Grade. 122
2.
Senior Management Grade.
3.
Middle Management Grade.
4.
Junior Management Grade.
After
proposals and counter-proposals between the Executive Committee of the Central
Board of the State Bank of India and the Officers' Federation, the Committee
agreed to do away with the distinction between Officers Grade-I and Grade-II,
who would be placed in a new cadre, called Junior Management Grade, having a
scale of pay being Scale-I--Rs.
700-40-900-50-1100-EB-
1200-60-1800. It was further agreed that the Officers Grade-II would be junior
to the existing Officers Grade-I and the seniority list would be prepared
accordingly.
After
the said agreement was reached between the Executive Committee of the Central
Board of the State Bank of India and the Officers' Federation, the Central
Board, in exercise of the powers conferred by sub-section (1) of section 43 of
the State Bank of India Act, passed an order, called State Bank of India
Officers (Determination of Terms and Conditions of Service) Order, 1979, for
short 'the Order', determining certain terms and conditions of service of
officers in the Bank. Some of the provisions of the Order which are relevant
for our purpose are extracted below:- "1.(1)This order may be called State
Bank of India Officers (Determination of Terms and Conditions of Service)
Order, 1979.
(2)
This order shall come into force on the 1st day of October 1979.
2.
(1) This order shall apply to the existing officers of the Bank and 'to the
officers of the Bank who are appointed or promoted to any of the grades
mentioned in paragraph 4 and to such other employees of the Bank to whom it may
be made applicable by the Central Board or the Executive Committee or the
competent authority to the extent and subject to such conditions as it may
decide.
(2)
It shall not apply, except to the extent specified by the Central Board or the
Executive Committee or the 123 competent authority, to an officer during his
tenure of service outside India or to employees engaged in any country outside
India and serving there.
3.
In this order, unless there is anything repugnant to the subject or context-- (a)
"Appointed Date" means the 1st October 1979;
....................................................
....................................................
...................................................
................
(h)
"Existing Officers" means all officers in the service of the Bank
immediately prior to the appointed date and to whom any of the following sets
of Rules as amended or as deemed to have been amended by appropriate
resolutions of the Central Board or the Executive Committee are applicable,
namely:- (i) Rules governing the service of Officers in the Imperial Bank of
India;
(ii)
Rules governing the service of Assistants in the Imperial Bank of India; and
(iii) State Bank of India (Supervising Staff) Service Rules;
4.
(1) There shall be the following four grades for officers with the scales of
pay specified against each of the grades:- (A) Top Executive Grade:
Special
Scale -- Rs.3500 (fixed) Scale VII -- Rs. 3250-125-3500 Scale VI -- Rs.3000-
125-3250 124 (B) Senior Management Grade:
Scale
V -- Rs .2500-100-3000 Scale IV-A -- Rs.2300-100-2600 Scale IV -- Rs.
2000-100-2400 (C) Middle Management Grade:
Scale
III -- Rs. 1800-75-2250 Scale II -- Rs. 1200-70-1550-75-2000 (D) Junior
Management Grade:
Scale
-- Rs.700-40-900-50-1100- EB- 1200-60-1800 (2) Notwithstanding anything
contained in subparagraph (1), a Probationary Officer and a Trainee Officer
shall, on appointment, be placed at the stage of Rs.860 in Scale I in the
Junior Management Grade.
..................................
..................................
..................................
7.
Subject to the provisions of paragraph 6, existing officers serving in the
grades and scales of pay mentioned in column 1 of the table given in Schedule I
to this order shall be placed as on the appointed date in the grade and scale
specified there against in column 2 of the said schedule.
Provided
that any difficulties or anomalies arising out of the above placement shall be
referred to a committee of such persons as the Chairman of the Bank may appoint
and the decision of that committee in this regard shall be final.
8.
(1) Every existing officer placed in any of the new grades and scales of pay in
accordance with paragraph 7, shall be fitted at such stage in the new scale of
pay corresponding to the existing grade and scale as specified in Schedule II
to this order.
125
(2) Subject to sub-paragraph (3), on being so fitted in the new scale of pay,
such officer shall be eligible to draw the next increment-, if any, in such new
scale on the first day of the month in which he would have been eligible to
draw increment in terms of the provisions in this behalf prior to the appointed
date.
(3)
Where two or more officers having different seniority in the scales of pay
immediately before the appointed date are fitted at the same stage in the new
scale of pay, different months may be fixed for the eligibility of such
officers for the next increment in the new scale of pay.
(4)
The mere fact that on the appointed date an officer happens to be posted in a
post categorised as that of a grade or scale higher than the one in which he is
placed in accordance with the provision of paragraph 7 will not by itself
entitle that officer to any higher placement or fitment." The Order was
actually made and published on 19th December, 1979. but in view of paragraph
1(2) it came into force on the first day of October, 1979. Under paragraph
2(1), it is inter alia provided that the Order shall apply to the existing
officers of the Bank and to such employees of the Bank to whom it may be made
applicable. Under paragraph 3(h), the expression "existing officers"
has been defined as meaning all officers in the service of the Bank,
immediately prior to the appointed date, that is to say, October 1, 1979. Thus,
it follows prima facie that the Order will apply only to the existing officers,
that is, the officers who were in the service of the Bank immediately prior to
the appointed date, which is October 1, 1979. It is not disputed that no Order
has been passed by the Central Board or the Executive Committee or the
competent authority directing the application of the Order to employees of the
Bank other than the existing officers, as provided in paragraph 2(1).
Before
the Order was made and published on December 19, 1979, certain Probationary
Officers and Trainee Officers were appointed by the Bank in Grade-I on October
30 and October 31, 1979. These Probationary/Trainee Officers, being Officers in
Grade-I were, on the dates they were appointed, superior in rank to the Officers
Grade-II. These Probationary/Trainee Officers were fitted to the Junior
Management Grade: Scale-I, after the Order was passed erecting such a Grade at
Rs.960 p.m. with effect from 30/31-10- 1979. These Probationary/Trainee
Officers, however, claimed that they were seniors to the erstwhile Officers
Grade-II and that they should be placed above such Officers Grade-II in the
seniority list. As the Bank had refused the claim of these Probationary/Trainee
Officers, to seniority over the erstwhile Officers Grade-II in the Junior
Management Grade, some of them filed writ petitions before the Allahabad High
Court and some before the Delhi High Court. The Bank, however, opposed the writ
petitions and contended that as they were not the existing officers, that is to
say, employees of the Bank on October 1, 1979, which is the appointed date,
they could not be given the seniority over the erstwhile Grade-II Officers, who
were the existing officers within the meaning of the expression under paragraph
3(h) of the Order.
The
Allahabad High Court has taken the view that the expression "existing
officers" has to be read as including the Probationary Officers and
Trainee Officers, otherwise a repugnancy between the definition of
"existing officers" and the provisions of paragraphs 7 and 8 of the
Order will arise. Further, it has been held that the notional date of the
coming into force of the Order, namely, 1-10-1979, is only to protect the
emoluments of the officers and nothing else. In that view of the matter, the Allahabad
High Court directed the Bank to prepare the seniority list of its officers in
the light of the observations made in the judgment. Although it was not
specifically directed that the Probationary/Trainee Officers should be placed
above the officers in the erstwhile Grade-II in the seniority list, yet that
would follow from the findings made by the High Court.
On
the other hand, the Delhi High Court took a contrary view and dismissed the
writ petitions. Though according to the Allahabad High Court, the
Probationary/Trainee Officers should be placed above the erstwhile officers in
the Grade- II, according to the Delhi High Court they would be placed below the
Officers in the Grade-II. Hence, these Appeals by the State Bank of India and
the Special Leave Petition by the Probationary/Trainee Officers.
Mr.
Kacker, learned counsel appearing on behalf of the Probationary/Trainee
Officers, has urged that the Allahabad High Court was justified in holding that
the writ petitioners appointed as Probationary/Trainee Officers on 30/31-10-
1979, should be considered as the existing officers within the meaning of
paragraph 3(h) of the Order. It is submitted by him that the Bank itself had
treated them as 127 existing officers. In support of that contention, the learned
counsel has drawn our attention to the fact that the Bank had fitted the
Probationary/Trainee Officers appointed on 30/31-10-1979 to the Junior
Management Grade: Scale-I at Rs.960 p.m. Such fitment, according to the learned
counsel, was made under paragraphs 7 and 8 of the Order.
Paragraph
7 provides for the placement of existing officers on the appointed date in the
corresponding grades and scales. It lays down, inter alia, that the existing
officers shall be placed as on the appointed date in the grade and scale
specified in column 2 of Schedule I. Item No. 9 of column 2 specifies the
Junior Management Grade:
Scale-I.
Paragraph 8(1) provides that every existing officer placed in any of the new
grades and scales of pay in accordance with paragraph 7, shall be fitted at
such stage in the new scale of pay corresponding to the existing grade and
scale as specified in Schedule II to the Order. It appears that by a circular
dated June 24, 1980, the following directions were given by the Chief General
Manager, State Bank of India:- "Officers who were promoted on or after the
1st October 1979 but upto 31st December 1979, should be first fitted in the old
scale in terms of the then existing formula and there- after their basic pay
should be refixed in the new scale for Junior Management Grade Scale I in
accordance with the table given below:
Basic
pay in the Basic pay in the Basic pay in the old clerical scale old officer's
scale junior management G.S.I on the date of promotion
---------------------------------------------------------- Upto350 500 950 370
540 1000 390 540 1000 420 580 1200 450 620 1200 480 665 1260 515 710 1320 550
755 1380 The basic pay of Probationary Officers and Trainee Officers who were
appointed during the period 1st October 1979 to 3 1st December 1979, will also
be fixed on the same basis. " 128 It is submitted on behalf of the
Probationary/Trainee Officers that it is clear from the said circular that they
were also treated as existing officers, otherwise they could not be given the same
benefit as the other existing officers of the Bank.
The
existing officers, as defined in paragraph 3(h), means all officers in the
service of the Bank immediately prior to the appointed date. Admittedly, the
Probationary/Trainee Officers were not in the service of the Bank immediately
prior to the appointed date, that is, October 1, 1979. They cannot, therefore,
be held to be the existing officers in the face of the definition of the
expression in paragraph 3(h) of the Order.
It
is difficult to accept the contention of the Probationary/ Trainee Officers
that they were treated by the Bank as existing officers merely because they
were fitted to the Junior Management Grade: Scale-I and given a higher start at
Rs.960 p.m. It is incorrect to say that when an employee is fitted to a
particular scale of pay of another cadre, he does not become a member of that
cadre. In the instant case, the Probationary/Trainee Officers were placed in
the corresponding scales of pay in the Junior Management Grade for the purpose of
fitment in the new scales of pay. Indeed, as stated already, they were fitted
to the Junior Management Grade: Scale-I at Rs.960 p.m. It may be that such
fitment has been made by the Bank following the principles as laid down in
paragraphs 7 and 8 of the Order, presumably with a- view to removing any
disparity between Officers Grade-I and Officers Grade II in the Junior
Management Grade, but it will be difficult to accept the contention made on
behalf of the Probationary/Trainee Officers that they were treated as existing
officers and such fitment was made under paragraphs 7 'and 8 of the Order. The
Probationary/Trainee Officers appointed on 30/31-10-1979, that is, after
1-10-1979, the appointed date, are not existing officers within the meaning of
paragraph 3(h) of the Order and the Bank could not treat them as such for the
purpose of fitment or giving a higher scale of pay.
We
are unable to subscribe to the view of the Allahabad High Court that unless the
expression "existing officers" is read as including the
Probationary/Trainee Officers, there will be a repugnancy between the
definition of existing officers, as contained in paragraph 3(h), and the
provisions of paragraphs 7 and 8 of the Order. This view of the Allahabad High
Court proceeds on the assumption that the Probationary/Trainee Officers having
been given the benefit of extra emoluments by fitting them in the Junior
Management Grade: Scale-I, 129 they were treated as existing officers. In our
opinion, if the Probationary/Trainee Officers are treated as existing officers.
it will be doing violence to the provisions of paragraph 3(h)..We do not think
that the definition of the expression "existing officers", as given
in paragraph 3(h) is, in any way, repugnant to the provisions of paragraphs 7
and 8 of the Order. On the contrary, it is quite in harmony with the said
provisions and also the other provisions of the Order. There is no ambiguity in
the definition of "existing officers" and in regard to paragraphs 7
and 8 of the Order there is no repugnancy of the definition to the subject or
context. Repugnancy of the definition of any term may arise only if such
definition does not agree with the subject or context of a particular
provision. But, surely, any action not in conformity with the provision of the
definition clause will not render the definition of a term repugnant to the
subject or context of any provision of the statute containing the term. We are
also unable to accept the convention of Mr. Kacker that the definition of
"existing officers" is only illustrative and not exhaustive and that
such narrow definition does not fit in everywhere. The definition does not give
any illustration whatsoever, and it is wrong to submit that the definition is
illustrative. On the contrary, the definition trader paragraph 3(h) is quite
specific and points to only one class of officers, that is, the officers who
were in the service of the Bank immediately prior to the appointed date and to
whom any of the rules, as mentioned in that paragraph, are applicable. In our
view, therefore, the Probationary/ Trainee Officers appointed on 30/31-10-1979,
that is, after the appointed date, are not existing officers.
In
this connection, we may notice the argument of Mr. Gupta, learned counsel
appearing on behalf of some of the Probationary/ Trainee Officers, that the
merger of Officers Grade-II and Grade-I into the Junior Management Grade was
only for the purpose of fitment in the higher scale of pay and not for the
purpose of seniority. It has been already stated that it was the demand of the
Officers' Federation, representing both Officers Grade-I and Officers Grade-II,
that the distinction between these two Grades should be abolished in every.
respect and, ultimately, it was agreed that they would be placed in one grade,
that is, the Junior Management Grade, having a higher scale of pay, subject to
this that the Officers Grade-I will be above the Officers Grade-II in the
seniority list. It appears from the Circular No. 9 issued by the Officers'
Federation, that the Pillai Committee's recommendations would be implemented in
the State Bank Group from October 1, 1979. Thus, it was agreed by the Officers'
Federation that a scheme, namely, the merger of Officers Grade-I and Officers
Grade-II into 130 Junior Management Grade would take place with effect from
October 1, 1979 and that has been exactly given effect to by the Order under
which the existing Officers, that is, the officers who were in the employment
of the Bank immediately prior to October 1, 1979, would be placed in the new
Junior Management Grade and to Scale-I, as contained in Schedule I to the
Order. In paragraph 2(1) of the Order, provision has been made for the application
of the Order to other officers. Thus, it is clear that all the officers of the
Bank in the lower level before the Probationary or Trainee Officers were
appointed on 30/31-10-1979 agreed that they would merge into a new Grade and
Officers Grade-I would be senior to the Officers Grade-II. This was the result
of the recommendations of the Pillai Committee suggesting that there should be
one grade for the Officers Grade-I and II in the lower level. It may be that
Pillai Committee did not make any recommendation with regard to seniority, but
when two grades of officers are merged into a new grade, the question of inter
se seniority will automatically arise and it will be the duty of the employer
to fix the seniority. Indeed, paragraph 18 of the Order lays down the
principles for computing the seniority of the officers of the Bank. But, under
paragraph 18(5) of the Order, the seniority among the existing officers will
remain the same. In other words, the Officers Grade-I will remain seniors to
Officers Grade-II.
Another
contention that has been made by Mr. Gupta for the Probationary\Trainee
Officers is that these officers have to undergo tests which are more stringent
than the tests to be undergone by the Grade-II Officers and, as such, the
Probationary/Trainee Officers, though they were appointed on 30/31-10-1979,
should not be placed under the Officers Grade-II in the seniority list. This,
in our opinion, is an argument in despair. The question is not whether the
Probationary/ Trainee Officers have to undergo more stringent tests than the
tests to be undergone by the Grade-II Officers, but the question is whether the
Probationary\Trainee Officers are existing officers or not, that is to say,
whether they were in the employment of the Bank immediately prior to October I,
1979. As the Probationary/Trainee Officers are not existing officers, they
cannot claim seniority over the Officers Grade II, who are existing officers.
It
is next contended that the Bank had no authority to give retrospective
operation to the Order with effect from October 1, 1979, inasmuch as section 43
of the State Bank of India Act under which the Order has been passed, does not
authorise the Bank to pass any such Order with retrospective effect. It is now
well settled that unless the 131 statute, under which the rules are flamed by
the rule making authority, does not specifically authorise the making of rules
with retrospective effect, such authority cannot frame any rule with
retrospective effect. (See Cannanore Spinning and Weaving Mills Ltd. v.
Collector of Customs and Central Excise, Cochin & Ors., [1970] 2 SCR 830;
Income-Tax Officer, Alleppey v. M.C. Ponnoose & Ors., [1970] 1 SCR 678;
Hukam Chand etc. v. Union of India & Ors., [1973] 1 SCR 896 and Regional
Transport Officer, Chittoor, & Ors. v. Associated Transport Madras (P) Ltd.
& Ors., [1980] 4 SCC 597).
Mr.
Shanti Bhushan, learned counsel appearing on behalf of the State Bank of India,
however, submits that the impugned Order has not been made retrospective, as
contended on behalf of the Probationary/Trainee Officers. All that has been
done by the Order is that the Officers Grade-I and Grade-II have been merged
into one category, namely, Junior Management Grade with effect from October 1,
1979. These Officers were already employees of the Bank before October 1, 1979
and, as such, they are existing officers within the meaning of paragraph 3(h)
of the Order. Further, it is submitted by him that the Bank after considering
the injustice done 'to the Officers Grade-II numbering about 15,000, sought to
remove the same by abolishing the distinction between Officers Grade-I and Officers
Grade-II in terms of the recommendations of the Pillai Committee by the
impugned Order with effect from October 1, 1979. It may be that there was some
delay in publishing the decision of the Bank, that is, the Order, but it cannot
be said that the Order is retrospective in operation.
Mr.
Shanti Bhushan points out that in V.T. Khanzode & Ors. v. Reserve Bank of
India & Anr., [1982] 4 SCR 411 this Court upheld the decision of the
Reserve Bank of India as regards the introduction of common seniority, inter-group
and mobility amongst different grades of officers belonging to Group-I,
Group-II and Group-III with retrospective effect from May 22, 1974. In that
case, officers belonging to Group-I urged that the scheme should be brought
into effect from January 1, 1976, while those belonging to Groups-II and III
wanted the scheme to be brought into effect from January 1, 1970. The Central
Board of the Reserve Bank struck a balance by choosing the date May 22, 1974.
Chandrachud, C.J.
delivering
the judgment of the Court held that it was the best solution in the peculiar
circumstances of the case and that in order to rectify the imbalances and
anomalies caused by the compartmental-wise and group-wise seniority, it was
necessary to give retrospective effect to the combined seniority list. Further,
it has been 132 observed by the learned Chief Justice that no scheme govern-
ing service matter can be fool-proof and some section or the other of employees
is bound to feel aggrieved on the score of its expectations being falsified or
remaining to be fulfilled. Mr. Shanti Bhushan has also placed reliance upon the
observation of Sabyasachi Mukharji, J., in Reserve Bank of India v. C.N.
Sahasranaman, [1986] Suppl. SCC 143. It has been observed by Mukharji, J that
whether there has been denial of equality or any constitutional right infringed
or not cannot be published where interests of large number of people are
concerned, in judged the abstract. Further, it has been observed that in
service jurisprudence there cannot be any service rule which would satisfy each
and every employee and its constitutionality has to be judged by considering
whether it is fair, reasonable and does justice to the majority of the
employees.
Relying
upon the above two decisions of this Court, it is submitted on behalf of the
State Bank of India that in the instant case also a large number of employees,
particularly the Officers Grade-II numbering about 15,000, have been
benefitted. Indeed, justice has been done to these 15,000 employees as agreed to
by the Officers' Federation of the Bank comprising both Officers Grade-I and
Officers Grade II. Counsel submits that existing officers have been given the
benefit of the Junior Management Grade: Scale-I with effect from 1.10.1979. So,
the Order was also given effect to from that date, which is the appointed date.
It is sub- mitted that the Order has been given effect to from 1-10- 1979 in
the interest of a large number of employees of the Bank. The
Probationary/Trainee Officers, who are only 900 in number and appointed on
30/31-10-1979, have no locus standi to challenge the Order or the merger of
Officers Grade-I and Officers Grade-II in one cadre, namely, Junior Management
Grade, as per the recommendations of the Pillai Committee.
It
is not disputed that negotiations had been going on between the Bank and the
Officers' Federation as to how and in what manner the recommendations of the
Pillai Committee accepted by the Government would be given effect to.
Ultimately, it was decided that the recommendations would be given effect to
from 1-10-1979 by merging the two categories of officers who were in the
employment of the Bank, immediately prior to 1-10-1979 into one category,
namely, the Junior Management Grade. Although the Order was actually published
on December 19, 1979, the officers of the Bank, who were there on or before
October 1, 1979, were aware of the fact that the Order would be given effect to
from October 1, 1979, as agreed to between 133 the Bank and the Officer's
Federation. The appointed date is relevant for the purpose of applicability of
the Order to the officers, who had been there in the service of the Bank
immediately prior to the appointed date.
Mr.
Soli Sorabjee, learned counsel appearing on behalf of the petitioners in the
Special Leave Petition No. 337 1 of 1982, has drawn our attention to a telex
message which has been communicated to all the petitioners instructing them to
complete their formalities and to join the duty well before October 31, 1979 in
their own interest. Telegrams were also sent to the petitioners to the
following effect:- "Reference to your selection as Probationary Officer
and our communications to you for immediate completion of necessary
formalities.
We
reiterate that the Pillai Committee's recommendations are likely to be
implemented shortly. If you join after implementation thereof, you shall be
governed by the revised terms of service and salary scales. You are advised in
your own interest to complete the remaining formalities viz., (1) acceptance of
our offer by 20th October, 1979 and be ready to join duty around 25th idem at
the place to be intimated to you after completion of formalities, failing which
the risk of change in the salary structure and other conditions will be
yours." From the telex and telegraph messages, it is contended that they
show that the Bank had decided to give effect to the Order with effect from
30/31-10-1979. We are unable to accept this contention. There is no indication
in the telex or telegram that the Order will be given effect to from October
30/31, 1979. The telegram really mentions that if the petitioners join after
implementation of the recommendations of the Pillai Committee, they will be
governed by the revised terms of service and salary scales. Indeed, it has been
already noticed that after the appointment of the Probationary/Trainee Officers
on 30/31-10-1979, they were fitted to the Junior Management Grade: Scale-I and
given a higher start at Rs.960 p.m. The telex and the telegram to which our
attention has been drawn, do not seem to be of any consequence to the
Probationary/Trainee Officers and does not at all support their contention that
the Order was intended to be given effect to from 30/31-10-1979.
It
is next contended by the learned counsel. appearing on behalf of the
Probationary/Trainee Officers, that the impugned Order takes 134 away the
vested fight of seniority of the Probationary/Trainee Officers with
retrospective effect. In elaboration of the contention, it is pointed out that
on the day these Probationary/Trainee Officers were appointed, namely, on
October 30/31-10-1979, they were admittedly seniors to the Officers Grade-II.
This seniority of the Probationary/Trainee Officers has been taken away by
giving retrospective operation to the Order. It is submitted that the Bank has
no authority to take away the vested right of seniority of the Probationary/Trainee
Officers with retrospective effect. On the other hand, it is contended by Mr.
Shanti Bhushan, learned counsel appearing on behalf of the State Bank of India,
that there is no question of vested right to seniority. Seniority is relevant
only for the purpose of promotion. A right to be considered for promotion is a
vested right, but a mere chance of promotion is not such a right. It is submitted
that the right of the Probationary/Trainee Officers to be considered for
promotion has not been affected in the least by the Order, nor have their
chances of promotion been affected. Moreover, no order has been passed under
paragraph 2(1) of the Order applying the same to the Probationary/Trainee
Officers. These Officers are outside the purview of the Junior Management Grade
and, as such, they are precluded from challenging the seniority of the
erstwhile Officers Grade-II, now placed in a completely different category. In
other words, it is the contention of the State Bank of India that the
Probationary/Trainee Officers, who have been appointed on 30/31-10-1979 as
Officers Grade-I, cannot challenge any benefit that is conferred on the
officers of a different cadre, namely, the Junior Management Grade.
It
is not necessary for us to decide whether there is any vested right to
seniority or not. The Probationary/Trainee Officers have not been brought
within the purview of the new cadre, that is, the Junior Management Grade. Indeed,
it is the complaint of the learned counsel, appearing on behalf of these
Officers, that they have been totally ignored by the Order inasmuch as no
provision has been made about them in the Order. We have already noticed that
it was the contention of the Officers' Federation that there should not be any
distinction in the status of Officers Grade-I and Officers Grade-II. It was
urged that such distinction should be abolished and both these categories of
officers should be placed in one category so that they have the same status and
position. The State Bank of India accepted the demand of the Officers'
Federation and the distinction has been removed. In these circumstances, it is
apparent that the Probationary/ Trainee Officers being Officers Grade-I, are of
the same status and position as the Officers Grade-II. Admittedly, the
erstwhile Officers 135 Grade-II were appointed much earlier than the
Probationary/Trainee Officers, who were the writ petitioners in the High
Courts. Although they had to perform almost the same duty and there was no
difference between their positions, they had to suffer an artificial
distinction and placed below the Officers Grade-I, who were considered to be
superior in rank to the Officers Grade-II. After the Bank had decided that both
these two categories of officers were same in status and position and such
decision having been implemented, we are afraid, it is difficult to accept the
contention made on behalf of the Probationary/Trainee Officers that they should
be considered senior to the erstwhile Officers Grade-II.
Moreover,
there is some force in the contention made on behalf of the Bank that as the
Probationary/Trainee Officers are not in the Junior Management Grade which is a
different cadre, they have no locus standi to challenge any benefit conferred
on the officers of the Junior Management Grade comprising erstwhile Officers
Grade-I and Officers Grade-II, as were in the employment of the Bank prior to
October 1, 1979.
It
is submitted by Mr. Shanti Bhushan that the Probationary/ Trainee Officers,
with whom we are concerned, have not been prejudiced in the least by the Order
having come into force on and from October 1, 1979. The learned counsel has
categorically stated before us that all these officers will be included in the
Junior Management Grade and an order in that regard will be passed under
paragraph 2(1) of the Order. It is pointed out by him that everybody will be
considered for promotion from the Junior Management Grade to the Middle
Management Grade. Thus, even though the Probationary/Trainee Officers are
placed below the erstwhile Officers Grade-II, they will be allowed to appear at
the written test, one of the modes prescribed for promotion, along with others
including the erstwhile Officers Grade II, provided they complete six years of
service in Grade-I.
Apart
from this, the Probationary/Trainee Officers have been fitted to the higher
scale of pay in the Scale-I of the Junior Management Grade, although they have
not been formal- ly included in that Grade. In these circumstances, it cannot
be said that the Probationary/Trainee Officers have been prejudiced by the
Order. We are sure that the Bank will take immediate steps for applying the
order to the Probationary/Trainee Officers. No other point has been urged on
behalf of the parties.
For
the reasons aforesaid, the judgment of the Allahabad High Court is set aside
and the Civil Appeals are allowed.
The
judgment of 136 the Delhi High Court is affirmed and the Special Leave Petition
is dismissed. All the Writ Petitions filed by the Probationary/Trainee Officers
are also dismissed. There will, however, be no order as to costs in any of
these Appeals or in the Special Leave Petition.
P.S.S.
Appeals allowed & Petition dismissed.
Back
