A.K. Soumini
Vs. State Bank of Travancore & Anr [2003] Insc 433 (4 September 2003)
Rajendra
Babu, J.:
AUGUST
14, 2003.
[Arising
out of S. L. P. (C) N0s.10038-10039 OF 2000]
Leave
granted.
The
appellant, having initially succeeded partially before a learned Single Judge
but lost before a Division Bench of the Kerala High Court in W.A. No.1378 and
1103 of 1998 has filed the above appeals. The appellant was appointed as
clerk/typist in the service of the respondent-bank on 28.2.1972. She undertook
written test for promotion to officer – Junior Management Grade (Group A &
B) on 20.7.80. Having come out successful, as per the procedure required she
appeared for an interview on 27.11.80 and though according to her claim she
fared well she was not included in the final list of 180 employees selected for
promotion. The appellant filed O.P. No.1323 of 1981 challenging her non-
selection for promotion, questioning also incidentally the provision in the
promotion policy which required the candidates to get at least a minimum of 6½
qualifying marks, in the interview. The learned Single Judge, by his order
dated 1.8.83 held that such predominance cannot be given to the interview by
stipulating for a minimum qualifying marks of 6½ to be secured in the interview
and allowed the petition in the following terms:
"In
moulding relief in this case, I think it would be unjust at this distance of
time to quash the whole selections. Persons who have not approached the court
in time would not be entitle to any relief and therefore interest of justice
would be served if I direct that the petitioner also be selected if the
aggregate total marks she has obtained both in the written and oral tests
exceeds that of any one who is now selected. It has to be proceeded on the
basis that there is no qualifying minimum marks fixed for the interview. In the
matter of seniority among those selected etc. the petitioner on the basis of
this order should be given consequential benefits if she is selected. Order
accordingly. Original petition is allowed as above.
There
will be no order as to costs." On appeal by the bank, the Division Bench
also seems to have affirmed the same by its judgment dated 29.11.83, and the
same was said to have been reported also in I.L.R. 1984(1) Ker.135.
Thereupon,
the Bank pursued the matter further before this Court in C.A. No.1056 of 1984,
and this Court by an order dated 5.8.93 while following the earlier decisions
upholding the provisions prescribing minimum marks for interview in a
selection, held that the requirement of 6½ marks for qualifying in the viva
voce, as prescribed in the promotion policy of the Bank cannot be held to be
invalid and the judgment of the High Court taking the contrary view, cannot be
upheld. At the same time, keeping in view the lapse of time due to the pendency
of the appeal in this Court and the fact that the appellant herein also did not
appear in subsequent tests held as follows:
"We,
however, cannot lose sight of the fact that in view of the decision of the High
Court in her favour whereby it has been directed that the respondent should be
treated as selected if the aggregate total marks both in written and oral tests
exceed that of anyone who is now selected, the respondent did not appear in
subsequent tests. She should not be made to suffer on account of the pendency
of the appeal in this Court for more than 10 years.
We,
therefore, consider it appropriate in the interest of justice to direct that
the decision of this Court reversing the view of the High Court with regard to
the validity of requirement of minimum marks for qualifying in viva-voce should
not operate to the prejudice of the respondent and she should be given the
benefit of the decision of the High Court. Before we part with this case it may
also be mentioned that the learned counsel for the respondent has pointed out
that the requirement of 33 marks for viva-voce is not in consonance with the
norms laid down by this Court for the marks to be prescribed for viva-voce and
for written test in a selection. Since we have not disturbed the decisions of
the High Court in so far as the respondent is concerned we do not propose to go
into this question. It is left to the Bank, if so advised, to take necessary
steps and review its promotion policy in the light of the decision of this
Court.
The
appeal is allowed and the judgment of the High Court quashing that requirement
of the minimum marks for qualifying in viva-voce in the promotion policy of the
Bank, is set aside subject to the direction that in so far as the respondent is
concerned she would be given the benefit of the judgment of the High Court. No
order as to costs." The Bank promoted the appellant to the cadre of JMG-I,
with retrospective effect from 30.12.80, and her seniority also seems to have
been fixed, accordingly, while at the same time fixing notionally and revising
her pay scales as on 5.8.93 at Rs.3900/-, indicating also that the annual
increment will fall due on 1.2.94 and thereafter on the first of February every
year. But, the appellant wanted also arrears of salary, for all such period and
seeking such relief filed O.P.No.9673 of 1994. A learned Single Judge by his
order dated 30.3.98 held that she would be entitled to get the full salary from
1980 onwards and further observed, "Therefore, while calculating and
disbursing the salary due to the petitioner for the above period, allowances
must be made in the salary which the petitioner drew after getting the
promotion in 1980." The Bank was directed to pass orders in this regard
within one month from the date of receipt of the copy of the order.
Aggrieved
the Bank filed W.A. No.1378 of 1998. The appellant, aggrieved by non-award of
interest on the arrears directed to be paid, filed W.A.No.1103 of 1998. The
Division Bench allowed the appeal filed by the Bank and dismissed the appeal
filed by the appellant, observing that the case on hand is one to which, the
principles of "no work, no pay" can be legitimately pressed into
service and the employer-Bank was justified in declining to pay the full salary
for the period in respect of which notional promotion and revision of pay
scales was also made. Hence, this appeal.
The
respective learned senior counsel on either side, reiterated the stand taken
before the High Court. On a careful consideration of the entire materials on
record including the earlier decision of this Court in the very matter between
parties, we are unable to approve the reasoning of the learned Single Judge,
which is the sheet anchor of the submission for the appellant before us,
besides placing reliance upon the decisions reported in Union of India &
Another vs P.Sathikumarana Nair & Others [1997(10) SCC 663] and State Bank
of India & Others vs T.J. Paul [1999 (4) SCC 759]. Even on a cursory glance
of the decision in 1997 (10) SCC 663 (supra) it could be seen no principle of
law for any guidance or to operate as any precedent seem to be laid down
therein and relief was granted for the reason that there was no valid
justification to deny a particular scale to a few only based on geographical
location of the institutions in which they served and therefore it has no
relevance at all to the issue raised in this case. The decision in 1999 (4) SCC
759 (supra) dealt with a case of penalty of removal imposed on the employee
concerned and on such punishment being found to be ultra vires, the powers of
the authority and the court remitting the case for consideration of the
appellate Authority for imposition of any punishment lesser than the loss of
job. This case cannot be of any assistance to the issue raised in this case.
In
State of Haryana & Others vs O.P. Gupta & Others [1996(7) SCC 533],
this Court had an occasion to deal with a claim for arrears, in a case where in
adjudicating a dispute relating to seniority this Court directed the department
concerned to prepare a fresh seniority list strictly in accordance with rules
ignoring inconsistent administrative instructions and in compliance thereof a
fresh seniority list came to be prepared and eligible persons were even given
notional promotion by the department from a deemed date. When such promotees
claimed for payment of arrears of salary as well, this Court rejected the claim
applying the principle of 'No work, No pay' and set aside the orders of the
High Court, countenancing such claims, to be illegal for the reason that the promotees
did not work for the period in the promoted capacities. In coming to such
conclusions this Court followed the earlier decisions reported in Paluru Ramakrishnaiah
vs Union of India [1989(2) SCC 541] and Virender Kumar, G.M., N. Rlys. vs Avinash
Chandra Chadha [1990(3) SCC 472].
So far
as the case on hand is concerned, the appellant was denied promotion in terms
of the promotion policy under which it was necessary for a candidate to secure
at least a minimum eligibility mark of 6½ at the interview and the learned
Single Judge, allowed the claim only on the ground that such prescription of a
minimum mark was not valid. Though, the Division Bench also affirmed the same,
this Court overruled the said decision and upheld such prescription. But taking
into account the pendency of the appeal in this Court for considerable time,
and on account of which the appellant also did not appear in the subsequent
tests, benefit to promote her was not denied. The fact that her non-promotion
was legal and there has been no unlawful interference with her right to
promotion or to serve in the promoted category was obvious and could not be
minced over or completely ignored in the light of the judgment of this Court,
allowing the appeal by the Bank. While that be the position, the grant of
relief to her, keeping in view the delay merely due to pendency of proceedings
before court, was more in the nature of a gesture of gratis and not by way of
any right, to which she was found to be entitled to. Consequently, the notional
promotion given to her by the Bank with suitable revision of her pay scales
itself is more than sufficient to meet the requirements, be it either in law or
in equity.
The
further claim for payment of arrears as well, is far fetched and can have no
basis in law. The Division Bench, in our view, properly approached the question
in the light of the relevant guiding principles and the same could not be said
to be either arbitrary, unreasonable or unsound in law to warrant of our
interference.
The
appeals, in the light of the above conclusions, fail and shall stand dismissed.
No costs.
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