Prem Parkash Pahwa Vs.
United Commercial Bank & ANR
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.
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.
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.
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xxx
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xxx
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xxx
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B.
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Written
Test and Interview.
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(1)
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xxx
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xxx
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Xxx
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(2)
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xxx
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xxx
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Xxx
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(3)
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xxx
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xxx
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Xxx
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(4)
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Allocation
of the marks for the written test, interview, length of service and
qualifications.
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Particulars
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Maximum
Marks Allotted
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(a)
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Written
Test
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25
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(b)
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Interview
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15
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(c)
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Length
of service in the clerical cadre (2 marks of each complete - see Note under sub-para
(ii) above- subject to a maximum of 40 marks).
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40
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(d)
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Qualifications:
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(i)
Graduation from a recognized University
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6
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(ii)
Institute of Bankers Examination :
Part
– I
Part
- II
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3
6
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(iii)
Double graduation or Master's Degree, from a recognized University or a Post-graduate
Diploma of a recognized University or Institute.
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3
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(iv)
Graduation in commerce from a recognized University with 50% or over of average
marks.
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20
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100
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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.
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PROMOTION TO OFFICER'S CADRE
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2.
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xxx
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xxx
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xxx
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3.
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Promotion
to the Bank's Officer's Cadre:
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3.1.1
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xxx
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xxx
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xxx
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3.1.2
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xxx
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xxx
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xxx
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3.1.3
(A)
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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xxx
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Xxx
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Allocation
of marks for the written test, interview, length of service and qualifications
shall be as under :
|
|
|
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Particulars
|
Maximum
Marks Allotted
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(a)
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Written
Test
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40
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(b)
|
Interview
|
10
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(c)
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Length
of service in the clerical cadre (2 marks for each completed year of service -
see Note under sub-para (ii) of para 3.1.2 above, subject to a maximum of 30
marks).
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30
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(d)
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Educational
Qualifications:
(i)
Graduation from a recognized Universities
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6
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(ii)
Post Graduates/Double Graduates from recognized
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3
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(iii)
Indian Institute of Bankers Examination :
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Part
- I ...
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3
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Part
- II ...
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6
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(iv)
All Honours Graduates/Cost Accountants or Graduates / Post Graduates having 50%
marks or more in the aggregate.
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20
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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).
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
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xxx
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xxx
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xxx
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3.2
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xxx
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xxx
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xxx
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3.3
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xxx
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xxx
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xxx
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3.4
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xxx
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xxx
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xxx
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3.5
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xxx
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xxx
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xxx
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3.6
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MODE
OF SELECTION
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3.6.1
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Merit-cum-Seniority
Channel:
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Under Merit-cum-Seniority
Channel, there will be assessment of 100 marks distributed in the following manner:
(a)
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Written
test to be conducted by the Institute of Banking Personnel Selection (IBPS) (model
questions/syllabus will be given before the test).
|
55
marks
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(b)
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Service
(2 marks for each completed year of service as assessed vide para 3.4.3 above
with a maximum of 25 marks.)
|
25
marks
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(d)
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Educational
Qualification:
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20
marks
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(i)
Graduation from a recognized University
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6
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(ii)
Post Graduate/Double Graduate from recognized University.
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3
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(iii)
CAIIB Examination of Indian Institute of Bankers :
Part
- I ... 3
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Part
- II ... 6
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(iv)
Honours Graduate / Graduate / Post Graduate from recognized University having
50% marks or more in the aggregate.
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2
|
|
|
|
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20
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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'.
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 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.
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