K B SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the judgment of the Division Bench of the Punjab and Haryana High Court dated March 23, 1990, in Letters Patent Appeal No. 310 of 1988. By the impugned judgment the Division Bench has reversed the judgment of the learned single Judge and allowed the LPA. The appellants are the employees of the New Bank of India who joined the Bank as clerk in the year 1972. They were promoted as Accountants in the year 1977. In the year 1980 they were further promoted as Assistant Manager in the same scale of pay as that of Accountant but special allowance of Rs. 75/- p.m. had been granted. These appellants had undergone some Probationary period and were confirmed as Assistant Manager of the Bank. While they were so continuing the Bank was itself taken over by the Union of India under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980. After the taking over of the Bank a set of Regulations were framed, called, The New Bank of India (Officers') Service Regulations 1982, providing for service conditions of the employees including the categorisation of the officers and their fitment in the new grades. The Bank also formulated a set of policy for promotion, called the 'Promotion Policy' which provided for the inter se seniority of these employees in different grades after their fitment and the mode and criteria for promotion. The appellants who were working as Assistant Manager before taking over of the Bank in the pay scale of Rs. 400-1110, which was also the scale of pay meant for Accountants were placed in the Junior Management Grade Scale I along with the Accountants. Their seniority in the Junior Management Grade Scale was determined under Clause 5.1 of the Promotion Policy. Being aggrieved by their fitment into the Junior Management Grade Scale I as well as determination of their seniority in the said grade in accordance with the Promotion Policy they filed a writ petition challenging the validity of Regulation 7 as well as Clauses 5.1, 5.5, 6.2 and 7.1 of the Promotion Policy inter alia on the ground that the Regulation in question has undone the promotion of the appellants already achieved and as such is violative of Articles 14 and 16 of the Constitution. It was also contended that different clauses of the Promotion Policy indicating the mode for determination of inter se seniority in the new cadre where the appellants have been fitted in are also violative of Articles 14 and 16 inasmuch as their promotion from the post of Accountants to the post of Assistant Manager has not been given any weightage and such Promotion Policy, more particularly Clause 5.1 thereof contravenes sub-regulation 5 of Regulation 18.

(2.) The respondents on the other hand took the stand that prior to taking over of the Bank the Accountants and Assistant Managers were drawing the same scale of pay, but those who were being posted as Assistant Managers were merely getting an allowance of Rs. 75/- per month. The word 'promotion' is a misnomer and, therefore, the appellants cannot claim any right on that score. Further stand of the respondents was that once the Bank was taken over, the employer had ample powers to determine the service conditions by framing Rules and Regulations and in exercise of such power Regulations having been framed and the post having been categorised to different grades and their fitment having been indicated there is no justification on the stand of the appellants that they could not have been fitted in Junior Management Grade Scale I along with the Accountants. So far as the Promotional Policy is concerned, it was the stand of the respondents that there has been no discrimination and due weightage has been given for the period an employee has served as an Assistant Manager even for determination of their seniority in the cadre ofJunior Management Grade Scale I and as such there has been no discrimination nor violation of Articles 14 and 16 of the Constitution. The learned single Judge, however, on consideration of the different provisions of the Regulation as well as the Clauses of Promotion Policy came to hold that Regulation 7 providing for categorisation and fitment of the existing officers of the Bank on being taken over its legally valid and there is no constitutional infirmity and as such the appellants were rightly put in the Junior Management Grade Scale I. But so far as the Clauses of Promotion Policy is concerned, the learned single Judge came to hold that Clauses 5.1, 5.5, 6.2 and 7.1 are ultra vires of Regulation 18(5) and are otherwise discriminatory and violative of Articles 14 and 16 of the Constitution and accordingly those Clauses of Promotion Policy were struck down. The appellants did not challenge the judgment of the learned single Judge and, therefore, the finding of the learned single Judge that their fitment into Junior Management Grade Scale I and that Regulation 7 is constitutionally valid has become final. The Bank, however, assailed the judgment of the learned single Judge striking down the different Clauses of Promotion Policy, as stated earlier, by filing a LPA. The Division Bench considered the different provisions of the Promotion Policy and came to hold that the single Judge committed an error by holding that unequals have been treated as equals and the said conclusion cannot be sustained. The Division Bench further came to hold that no unreasonable or arbitrariness or inequality can be found in the Promotional Policy providing the mode for determination of inter se seniority of the officers in any particular grade. It also took note of the fact that even while fixing the seniority under the Promotion Policy, additional weightage has been provided for discharging the functions of the Manager/Assistant Manager managing one man Bank. Further weightage has also been provided at the time of consideration for promotion and, therefore, the Clauses of the Promotional Policy cannot be held to be violative of Articles 14 and 16 of the Constitution. With these conclusions the judgment of the learned single Judge having been set aside and the Clauses of Promotional Policy having been held to be valid the appellants have preferred this appeal.

(3.) Mr. Javeli, learned counsel appearing for the appellants strenuously urged that the very categorisation of the officers in the terms of Regulation 7 by putting the Assistant Managers and the Accountants in one grade is invalid and has been so held by the Andhra Pradesh High Court in Sainathan's case and the Special Leave Petition against the said judgment has not been entertained by this Court and as such Regulation 7 must be held to be invalid. We are unable to accept this contention of Mr. Javeli, learned senior counsel, inasmuch as in Sainathan's case only the inter se seniority of the officers was under challenge and the determination made thereunder by the High Court was not interfered with by this Court inasmuch as the Special Leave Petition was dismissed in limine. Neither the High Court has struck down Regulation 7 nor this Court had the occasion to go into the question while dismissing the Special Leave Petition in limine. That apart, as has been stated earlier, in the case in hand the learned single Judge upheld the validity of Regulation 7 and the appellants did not challenge the same by filing any appeal and as such the decision of the learned single Judge in that respect has reached finality and cannot be re-opened in an appeal against the judgment of the Division Bench where the only question was the validity of different Clauses of the Promotional Policy. We have, therefore, no hesitation in rejecting the submission of Mr. Javeli on this score.