RAGHVENDRA PRASAD GAUTAM Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) THUS spoke H. G. Wells-"human history becomes more and more a race between education and catastrophe". Modern Indian reformers of the later part of 18th century possibly felt that modern education would keep at bay the catastrophe caused due to ignorance of modernism, and British Premier, Macaullay, thought it appropriate to make the Indians educated and learned in English as that would open new vistas of knowledge for them. The saying-learning of a language is sometimes a luxury-was not the motto. It was essential for understanding the world in its expanding modernity, perceiving progress in proper perspective, cultivating culture in serene calmness, training oneself in liberalising political thought and observing advancement of science in composed rationality. However, with the change of time, the ideal of establishing a well-affirmed national identity gained ground. Keeping in mind, the idea of enrichment of self-respect and self-dependence, the constitutional fathers thought it appropriate to make Hindi the national Language and later on the Parliament legislated ushering in the Official Languages Act, 1963 (hereinafter referred to as 'the Act'), but how far they have ostracised English, is the seminal question that calls for adjudication in the present writ petition preferred under Article 226 of the Constitution by an employee of the Union Bank of India who has expressed his deep seated anguish and prayed for issue of appropriate writ declaring the promotion policy of the said Bank, which requires a candidate to secure minimum percentage of marks in English to quality in the Written Test, as arbitrary and contrary to the provisions of the Act as well as infringing the principles enshrined under Articles 343, 344 and 14 of the Constitution of India, and further issue a Writ of mandamus commanding the respondents to reconstitute the merit list relating to Officers Cadre without taking into consideration the marks obtained by the competing candidates in the English Language paper and publish a revised select list.

(2.) THE essential facts : The petitioner is working in the post of Head Cashier in the Clerical Cadre in the Union Bank of India, extension counter, 9th Battalion S. A. F. , Rewa. The Officers' Cadre include Junior Management Grade I, Junior Management Grade II, Middle Management Grade II, Higher Management Grade IV, Higher Management Grade V and Higher Management Grade VI. According to the petitioner promotions from the Clerical Cadre to that of the Officers Cadre in the Union Bank of India are governed by the settlement arrived at between the Management and the All India Union Bank Employees' Association in terms of which the promotion policy for clerical staff for promotion to the Officers Cadre has been formulated and circulated vide circular dated October 23, 1992. The promotional policy has been brought on record as Annexure P-1. Chapter I of the policy provides for two channel of promotion from the Clerical Cadre to the Officers Cadre, Junior Management Grade. Scale I, the State Services (seniority-cum-merit) and All India Services (merit ). It provides for filling-up of Junior Management grade Scale I; 45 % by promotion to State Services; 30% by promotion through All India Services and 25% by direct recruitment. As stipulated in the policy 25 % of the vacancies are earmarked for direct recruitment and out of the remaining 75 %, 60 % vacancies are to be filled-up by promotion through the State Services and 40% through All India Services. Vacancies in the State as well as All India Services are filled-up by means of the competitive examination. Chapter II of the promotion policy deals with subject of State Services. Certain eligibility criteria are fixed after identifying the vacancies to be filled up, candidates twice the number of identified vacancies are called for the Written Test which comprises of one paper carrying 100 marks. Chapter HI deals with subjects of All India Services. In order to be eligible to compete, a candidate is required to have a minimum three years of service in the Clerical Cadre as on the specified cut off date. Promotions are made under All India Services by Written Test which consists of four subjects, namely, English, Law and Practice of Banking, Commercial Law/ Accountancy and Practical Banking. Minimum qualifying mark is prescribed in the Written Test in all the subjects. As is apparent English has been made a compulsory paper for the said Written Test and minimum 35% of mark is necessary to qualify in the said Written Test. In consonance with the promotion policy vacancies were advertised vide staff circular dated April 26, 1993 inviting applications from all clerical employees who had completed three years of satisfactory service in the Clerical Cadre as on April 13, 1993. The petitioner being eligible, appeared in the Written Test but was not successful as he had not secured the minimum qualifying marks in the English Language paper. The marksheet was communicated to him on September 11, 1995. Vacancies were again advertised in the year 1995 and the petitioner once again took up the examination. Though he had scored good marks in all other subjects he could not obtain minimum requisite marks in the English Language Paper, he was declared unsuccessful. The mark sheet was communicated to him on May 4, 1996 as contained in Annexure P-5. Feeling aggrieved about the unfortunate scenario, the petitioner submitted a representation to the Chief Manager (Personnel) protesting that disadvantage had been caused to him on account of the English Language Paper and non- inclusion of Hindi in the said examination as an optional paper. The first representation was made on February 14, 1996. Thereafter the petitioner submitted two more representations indicating that the candidates who had secured lesser marks than him had been called for interview and the sole reason for his disqualification/non-selection was non-obtaining of minimum qualifying marks in the English Language paper. This failure on the part of the petitioner is sought to be agitated in this writ petition. The individual dissatisfaction has been canvassed in the constitutional backdrop. It is averred in the writ petition that the promotional policy which stipulates minimum qualifying marks in English Language is violative of the provisions eashrined under Articles 343 and 344 of the Constitution. It is also putforth that the promotional policy is against the spirit of the provisions of the Official Languages Act, 1963. It is also set forth that the English Language paper in All India Service Examination in other nationalised banks is not compulsory whereas the same has been made compulsory in the case of the respondent No. 1 Bank, by which a discrimination is caused which is against the conscience of the provision of Article 14 of the Constitution.

(3.) A return has been filed by the answering respondents contending, inter alia, that the promotional policy has been formulated on the basis of the settlement arrived at under the provisions of Industrial Disputes Act, 1947 and the said settlement was entered into between the respondent-Bank and the majority Workmen Union i. e. , All India Union Bank Employees Association on October 10, 1992 under Section 2 (p) read with Section 18 (1) of the Industrial Disputes Act and Rule 58 of the Industrial Disputes (Central) Rules, 1957. It is also putforth that the petitioner is a workman and cannot call in question the validity of the settlement, more so, when the union is not a party to the present writ petition. It is also stated that the petitioner has to resort to the remedies available under the Industrial Disputes Act. It is highlighted that there are two channels of promotion from Clerical Cadre to Officers Cadre: State Services and All India Services. In State Services two times the number of identified vacancies are called for promotion process in each State, in order of seniority of the employees. In All India Services all confirmed clerical employees who have completed three years of service are eligible to participate in the Written Test. In the State Service only senior employees are called for the promotion whereas in the merit channel all eligible employees can participate in the competition irrespective of their seniority and there is no minimum qualifying marks in Written Test for the State Services Channel and list of the employees is prepared in order of marks obtained In the Written Test. It is further pleaded that in All India Services more emphasis is given on merit and in the State Services stress is on seniority. The employees appearing for promotion test in All India Services are required to have working knowledge in English Language and, therefore, the Written Test in the English Language is included. It is also contended that the promotional policy has been formulated taking into consideration the overall situation. Interest of employees working throughout the country and necessity of administration. It is also pleaded that the stand of the petitioner that the percentage of successful candidates in the promotion from Clerical Cadre to Officers Cadre in Southern region is high because of English is not correct as statistics reveal that 47. 12% and 37. 87% candidates have failed in English Language (though they have passed in all other states) in South Zone-I and South Zone-II respectively, in the Written Test held on 1995 whereas 37. 98%, 31. 14% and 33. 80% have failed in English (through they have passed in all other subjects in Northern Zone, Central Zone-I and Centre Zone-II) respectively which are considered to be Hindi speaking zones. The challenge is the background of constitutional provision and the Official Languages Act has also been controverted in the return. It is also stated that the promotion policy of other nationalised banks are based on the requirement of their services and not binding on the answering respondents.