ASSISTANT GENERAL MANAGER CANARA BANK PERSONAL WING HEAD OFFICE BANGALORE Vs. S RAJAGOPALAN SENIOR MANAGER CANARA BANK SALEM MAIN ROAD NAINARPALAYAM

JUDGEMENT

(1.) THIS writ appeal is directed against the order, dated 1. 8. 1994 made in Writ Petition No. 4220 of 1985 by P. S. Mishra, J. (as he then was ). The facts of the case are as follows: The respondent filed Writ Petition No. 4220 of 1985 for quashing the clauses 3 (b) (ii) and (iii) of Memo No. 142 of 1984, dated 20th March, 1984 for promotion from scale II. He contended that the Banker' s policy in awarding additional marks to officers in the junior management cadre scale I with qualifications like Chartered Accountants, Law qualification etc. , is illegal, that those officers should not be given additional marks and that the grant of additional marks for promotion violate Arts. 14 and 16 (1) of the Constitution of India . It is useful to extract the promotion policy from Junior Management Grade Scale I to middle Management Grade Scale II, which had been finalised after discussion with CBOA. The norms for promotion for the year 1984 in Canara Bank are furnished as below: ' ; CANARA BANK MEMO NO. 142/84, PERSONAL MANAGEMENT SECTION, PERSONAL WING HO BANGALORE 560 002 . . .. . . 1. Vacancies . . . . . .

(2.) ELIGIBILITY All Accountants promoted or appointed as Probationary accountants on or before 1. 1. 1978 are eligible.

(3.) LET a direction issue accordingly. There shall be no ordef as to costs. . " As against the order of the learned single judge the appellant/bank had preferred the present writ appeal challenging the legality and correctness of the order. 6. We have heard the arguments of Mr. P. Ibrahim Kalifulla learned counsel for the appellant/bank and Mr. Srivatsamani learned counsel for the contesting respondent. With great respect we disagree with the views expressed by the learned single judge, which in our opinion are quit contrary to law. The learned single judge has failed to not that to fixing the eligibility criteria for promotion to the officers of the Bank, awarding of additional marks to the officers, who are recruited as Law Officers, Chartered accountants and Technical Field Officers based on the professional qualifications and their post qualifications etc. would not amount to a violation of Arts. 14 and 16 of the Constitution of India. The eligibility criteria for promotion to the post of officers was fixed by the bank only in consultation with the Officers Association of which the respondent was a member and he has also been subjected himself for the promotion process duly accepting the promotion policy and as such the eligibility criteria for promotion cannot be attacked on the ground of violation of Arts. 14 and 16 of the Constitution of India. The appellant - Bank in paragraphs 7 and 9 of their counter-affidavit have clearly stated that promotions were effected pursuant to and strictly in accordance with the promotion policy laid down by the Bank, after consultation and agreement with the recognized association representing majority of the officer employees of which the respondent was also an office bearer. The respondent did not demand or protest against the policy, but subjected himself to the process pursuant to the promotion policy and did not come out successful thereon. Likewise, while answering to the averments in paragraph 4 of the affidavit filed by the respondent in support of his writ petition, the appellant Bank has clearly explained that additional ten marks were awarded to the specialist officers i. e. , Law Officers, Chartered Accountants, Technical field Officers, who are having professional qualifications and they had entered into the service of the Bank only because of their professional knowledge and post qualification experience. Therefore, we are of the view they cannot be treated on par with other officers, who entered into the services of the Bank after possession of a Bachelor' s Degree at an early age of 21 years whereas the services of the bank only at the age of 28 years after completion of a Bachelor' s degree and subsequent possession of professional degree followed by relevant post qualification experience for a minimum period of three to four years. In our view, the learned single judge has failed to consider the above facts Further, for filling up the posts of officers scale II in the Legal Department or accountants Department and other Departments where specialised knowledge is required, the officers in scale I recruited as specialist officers would be more eminently suitable than other officers who do not possess any specialised knowledge and experience. Therefore we are of the view that the allotment of additional marks to the specialised officers cannot be said to be one without a rational criteria. In matters of recruitment like this, the appellant bank has got to consider the time taken by the specialist officers in acquiring additional professional qualifications and gaining experience in the respective field to make them eligible to get the appointment as Specialist Officers and they are entitled to have weightage for such accomplishment and it will be discriminatory to put them on the same pedestal as officers without these qualifications with experience. Therefore, we are of the view that the awarding of marks to officers of the bank of a particular cadre for their specialised experience, professional qualification and their recruitment as specialist officers would not per se amount to discrimination under Art. 16 (1) of the Constitution of India. The awarding of such marks to the specialist officers is also in keeping with the guidelines prescribed by the Government of India in terms of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 and art. 17 of the Regulations framed by the Government entitles the Board of directors of the Bank to fix the eligibility criteria and such fixation of eligibility criteria forming part of the terms and conditions applicable to the officers of the Bank cannot be challenged in the manner it is challenged by the respondent. The learned single judge has also not appreciated that the Bank would be a State or other authority under Art. 12 of the Constitution only for the purpose of enforcement of fundamental rights and that in the matter of promotion of officers, there is no fundamental right involved and that the respondent will be entitled to be considered for promotion only on the terms of the eligibility criteria announced by the bank in accordance with the regulations. It is seen from the order impugned in the writ appeal that the order impugned in the writ appeal that the learned Judge has erred in moulding the relief and directing the management to consider the respondent' s candidature for fictional promotions at various stages without he being subjected to the process of such promotions. We are of the view that the learned judge ought not to have moulded the relief in the above manner. It is not in dispute that the policy framed by the Bank was circulated among the employees and the respondent, after knowing the policy in detail had chosen not to contest or to make any objection regarding the marks to be awarded to the specialist officers. On the other hand, he was subjected himself to the promotion process and only when he was unsuccessful, he has chosen to challenge the promotion policy. The learned judge ought to have appreciated the position that the respondent along with 134 eligible candidates pertaining to the batch of 1. 4. 1977 undergone promotion process during the year 1984 and out of which 27 officer employees, who are not specialised officers and not got the additional marks have also got the promotion in view of their obtaining higher marks in their performance and the respondent has not come out successful because of his lower ranking in performance. Considering the entire material available on record. We are of the view that the respondent has no right for automatic promotion and that he has only a right to be considered for promotion, subject to the policy and while considering him for promotion along with other officers in scale I,it is not illegal to give weightage of additional marks to the specialist officers. The order of the learned single judge is there-fore in our view liable to be set aside. 7. Some of the decisions cited by Mr. Ibrahim Kalifulla, learned counsel for the appellant can also be usefully noticed in the present context. State of Jammu and Kashmir v. Triloki Nath Khosa and others, (1974)1 s. C. R. 771 decided by five Honourable Judge of the Supreme Court, who have held that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could for purposes of promotion to the cadre of Executive Engineers be classified on the basis of Educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion diploma holders does not violate Arts. 14 and 16 of the Constitution. The decision in S. V. Subba Rao v. A. P. S. R. T. Corporation, (1992)1 L. L. J. 441, relates to promotion to posts of Divisional Managers in andhra Pradesh State Road Transport Corporation. The writ petitioner and respondents 3 to 5 in that case were Assistant Mechanical Engineers/assistant traffic Managers in the Corporation. All of them are graduates in engineering or holding equivalent qualifications, post graduate or diploma holders, the petitioners have longer service in the corporation that the respondents 3 to 5. All of them were eligible for promotion to the category of Divisional Managers in accordance with the Andhra Pradesh State Road Transport Corporation employees Service Regulations, except the fourth respondent who had not completed three years of service as Depot Manager. Clause (b) (i) of Regulation 4 provided that promotion in a service or class to a selection category or to a selection grade shall be made on grounds of merit, seniority being considered only, where merit is approximately equal, petitioners who were seniors in the feeder category were ranked lower than the respondents, who were their juniors. The petitioners contended that awarding of more marks in the interview was reasonable and fair. The court held that the award of higher marks to the respondents on the basis of merit-ranking reports was neither unreasonable nor discriminatory and that the selection committee was enabled to grant additional weightage on the basis of higher educational attainments and that the said process did not involve any discrimination against the petitioners. The division Bench of Andhra Pradesh High Court further held that in cases where selections are made for appointment in public services of persons who are middle aged and above, that award of 25 per cent marks did not transgress the reasonable limits and that the award of 25 per cent marks to assess the personal traits, the individual dynamism and other related qualities could not therefore be considered as entirely unreasonable and arbitrary. In the decision reported in P. Murugesan v. State of Tamil Nadu, (1993)1 L. L. N. 667, decided by three Honourable Judges of the Supreme Court the dispute was between the degree and diploma holders in the engineering service under the Madras Municipal corporation in regard to their promotion to the posts of Assistant Executive engineers. The Supreme Court held that one cannot fail to take note of the fact that right from 1974 i. e. , since the decision of the Constitution Bench in triloki Nath Khosa and others, (1974)1 S. C. R. 771, the Supreme Court has been holding uniformly that even where direct recruits and promotes are integrated into a common class they could for purpose of promotion to the highest cadre be classified on the basis of educational qualifications. The Supreme Court did not agree that by prescribing a longer qualifying period of service for diploma holders, they have been equated with the graduates and that thereafter no further distinction is permissible. The distinction aforesaid was also in the matter of promotion and not for any other purpose. In the judgment in t. R. Kothandaraman v. T. N. Water Supply and Drainage Board, (1994)2 L. L. N. 1066, the Supreme Court held that higher educational qualification has relevance in so far as the holding of higher promotional post is concerned, in view of the nature of functions and duties attached to that post. That classification has, therefore, nexus with the object to be achieved. This apart, history also supports the differentiation sought to be made by the rule in question. The supreme Court has therefore upheld the qualification as valid.