Dismissed

K.M. Mishra v. Central Bank of India and Ors.

Bombay HC24 Nov 2006WP/1412/1997

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the promotion of an officer to Chief Manager Rajbhasha, claiming superior merit due to seniority and officiation experience. The Court rejected these arguments, holding that the promotion was based on merit and performance, and since the petitioner participated without protest, the challenge failed.

What did the court decide?

Petition dismissed; rule discharged.

K.M. Mishra Vs Central Bank of India and Ors. — Pension and Retirement Benefits | Bombay HC (2006)

¶1

 .[1].

¶2

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

¶3

 WRIT PETITION NO.1412 OF 1997

¶4

`K.M.Mishra, )`
`son of late Shri Harishchandra )` `Mishra, resident of A-37/602, )` `Unique Palace Shanti Park, )` `Meera Road, Dist.Thane. ) ..PETITIONER.`
`VERSUS`
`1. Central Bank of India, )` `through its Chairman )` `and Managing Director, )` `Head Office, Chandramukhi, )` `Nariman Point, )` `Mumbai-400 021. )`
`2. Shri J.Bhattacharjee, )` `General Manager (Personnel), )`
`through Central Bank of India,)` `Head Office Chandramukhi, )` `Nariman Point, )` `Mumbai-400 021. )`
`3. Shri R.R.Sharma, )` `General Manager (Rajbhasha), )` `through Central Bank of India,)` `Head Office Chandramukhi, )` `Nariman Point, )`
`Mumbai-400 021. )`
`4. S.C.Unhelkar, )` `Chief Manager (Systems and )` `Procedure), Central Bank of )` `India, Head Officer, )`
`Nariman Point, )` `Mumbai-400 021. )`
`5. Shri R.K.Uppadhyay, )` `Chief Manager (Rajbhasha), )`
`Central Bank of India, )`
`Head Office, Chandramukhi, )`
`Nariman Point, )`
`Mumbai-400 021. ) ..RESPONDENTS.`

¶5

 .[2].

¶6

 Mrs.N.V.Masurkar, Advocate for the Petitioner.

¶7

 Mr.J.P.Cama, Senior Counsel i/b. K.P.Anilkumar,
 Advocate for the Respondent.

¶8

 CORAM : DR.S.RADHAKRISHNAN AND
 SMT.V.K.TAHILRAMANI,JJ.

¶9

 DATED : NOVEMBER 24, 2006.

¶10

 JUDGMENT: (PER SMT.V.K.TAHILRAMANI,J.)

¶11

 1. In this Petition filed under Article 226 of
 the Constitution of India, the petitioner has
 challenged the promotion granted to respondent
 No.5 to the post of Chief Manager Rajbhasha (SMG
 Scale IV).

¶12

 2. Admittedly, the petitioner himself
 underwent the selection process of promotion for
 the said post alongwith respondent No.5. The
 promotion had been challenged on the following
 main grounds : (i) that respondent No.5 did not
 possess the requisite qualification of
 Post-Graduate degree in Hindi with English as a

¶13

 subject at Degree level or Post-Graduate degree in
 Sanskrit with Hindi and English as subjects at
 Degree level; (ii) that respondent No.5 was

¶14

 .[3].

¶15

 junior to the petitioner; (iii) that, respondent
 No.4 was not competent to write the APR of the
 petitioner for the years 1994-1995, 1995-1996 and
 1996-1997 and that respondent No.4 allegedly
 down-graded the petitioner from "excellent" to
 "good"; and (iv) that the petitioner was
 officiating in the higher post for about three
 years and therefore he was more meritorious than
 respondent No.5.

¶16

 3. The petitioner had initially joined
 respondent-Bank as Hindi Translator in the
 Clerical Cadre in 1973. He came to be promoted as
 Hindi Officer w.e.f. 1.12.1976. The petitioner
 was granted Scale II in 1984 and Scale III w.e.f.
 1.4.1991. On or about 1.2.1993 the petitioner was
 given charge of the post of Chief Manager on
 retirement of Shri.R.V.Tiwari, AGM. The
 petitioner claimed that he officiated in the
 higher post and completed five years service in
 Scale III on 1.4.1996. Respondent No.4 took over
 the charge as Rajbhasha Pramukh on 9.8.1996.

¶17

 4. By letter dated 9.5.1997 the petitioner was
 informed by the Chief Manager to appear for an

¶18

 .[4].

¶19

 interview for promotion to Scale IV (1997)
 Rajbhasha. The interviews were held on 19.5.1997
 and respondent No.5 came to be selected. The
 petitioner made representation by way of an Appeal
 on or about 17.6.1997. It is the case of the
 petitioner that inspite of his representation the
 same was not decided till he approached this
 Court. On 14.10.1997 this Court directed the
 respondent-Bank to decide the appeal of the
 petitioner by constituting a review committee.
 The Review Committee rejected the appeal by its
 order dated 15.12.1997 and consequently the
 Petition came to be amended so as to challenge the
 Appellate order as well.

¶20

 5. As per the Promotion Policy of the
 respondent-Bank, for promotions from Middle
 Management Grade (Scale III) to Senior Management
 Grade (Scale IV), an officer should have completed
 a minimum of five years of service in MMG (Scale
 III). There is no dispute that the petitioner and
 respondent No.5 both fulfilled the said
 qualification. As far as the educational

¶21

 qualifications are concerned, the requirements are
 as under :

¶22

 .[5].

¶23

 "2. Educational qualifications:

¶24

 . Second class Master’s Degree in Hindi
 with English as an elective subject at
 Bachelor’s Degree level;

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 . Second class Master’s degree in
 Sanskrit/English/Economics/Commerce
 with any recognised public examination
 in Hindi equivalent to
 graduation/Hindi as an elective
 subject at graduation level;

¶26

 . Second class Master’s Degree in
 Economics/Commerce in Hindi medium and
 with English as an elective subject at
 Bachelor’s Degree level."

¶27

 . The petitioner possesses Master’s Degree
 with Hindi as a Special subject and English as one
 of the subjects at Bachelor’s level; whereas
 respondent No.5 possesses M.Com. Degree with
 Hindi as a Special subject with English as one of
 the subjects at Graduate level. As both of them
 possess the requisite educational qualification,
 it cannot be said that the petitioner has better
 educational qualification.

¶28

 6. On the point of officiation by the
 petitioner in a higher post, the respondent-Bank

¶29

 .[6].

¶30

 in its affidavit has stated that the petitioner
 has officiated in the higher post for a period of
 about one year till 8.3.1994 on stopgap
 arrangement. Thereafter, respondent No.4 was
 entrusted with the additional responsibility of
 Hindi Cell. Officiating for a period of a year or
 even more cannot make the petitioner more
 qualified, as the promotion to the said post is
 based entirely on performance and potential from
 amongst the officers who had achieved the
 eligibility level. For educational qualification
 no weightage is given for promotions beyond the
 MMG Scale III. The Promotion Policy for the
 Specialist Cadre has been designed on the basis of
 merit from amongst the eligible officers and said
 post is undoubtedly from a Specialist Cadre.

¶31

 7. It is the case of the petitioner that,
 respondent No.4 was not competent to write the APR
 of the petitioner for the years 1994-1995,
 1995-1996 and 1996-1997 and that respondent No.4
 allegedly down-graded the petitioner from
 "excellent" to "good". For the year 1994-1995
 Shri.Arjun Bhaya and the then General Manager of
 the Hindi Cell assessed the petitioner’s work and

¶32

 .[7].

¶33

 gave his ratings. For the next two years the
 assessment was done by respondent No.4 and
 Shri.R.R.Sharma General Manager, Hindi Cell acted
 as a Reviewing Authority. For the year 1995-1996
 the petitioner failed to give his self-appraisal
 form in time i.e. before the retirement of
 Shri.Arjun Bhaya. The respondent-Bank has placed
 before us the self-appraisal form filled-in by the
 petitioner in each year, from which it is seen
 that the petitioner has submitted the
 self-appraisal forms for these three years
 belatedly. Thus, by the time the petitioner
 submitted his self-appraisal form for the year
 1995-1996, Mr.Bhaya had already retired and hence
 it was not possible for Mr.Bhaya to assess the
 petitioner’s work. Though, for the last two years
 it was respondent No.4 who acted as a Reporting
 Officer, the Reviewing Authority was
 Shri.R.R.Sharma against whom the petitioner has no
 grievance.

¶34

 8. It is also alleged by the petitioner that
 respondent No.4 down graded him from "excellent"
 to "good" and that respondent No.4 was not
 competent to hold the charge of Hindi Cell as he

¶35

 .[8].

¶36

 was from the main stream. These allegations do
 not impress us. It is within the managerial
 domain of the respondent-Bank to reshuffle the
 Senior Officers and respondent No.4 was not the
 sole authority to finalise the ratings of the
 petitioner. Respondent No.3 i.e. the General
 Manager (Rajbhasha) has acted as a Reviewing
 Authority and, therefore, the contention of the
 petitioner that he was down graded is unfounded.

¶37

 9. There is no doubt that in the performance
 of last three years 1994-1995, 1995-1996 and
 1996-1997 respondent No.5 was rated as "very good"
 for all the three years, whereas the petitioner
 was rated as "good" for two years and "very good"
 for one year. The performance ratings and the
 marks obtained by the petitioner and respondent
 No.5 are as under :

¶38

 PROMOTION PROCESS FROM SC.III TO IV (RAJBHASHA)

¶39

 ---------------------------------------------------------------
 Sr. Name Present Performance Appraisal Ratings
 No. Placement 1994-95 1995-96 1996-97

¶40

`---------------------` `1. 2.` `---------------------`	`------------------------------------------` `3. 4. 5. 6.` `------------------------------------------`
`1. Shri.K.M.Mishra`	`Rajbhasha Very Good Good`
`(Petitioner)`	`Vibhag, Good 24 24`
	`Central 32` `Office.`

¶41

 .[9].

¶42

`2. Shri.R.K.Upadhaya`	`Z.O.New Very Very Very`
`(Respondent No.5)`	`Delhi. Good Good Good`
`----------------------`	`32 32 32` `----------------------------------------`
`Contd...`

¶43

`--------------------` `Sr. Average` `No. Marks`	`-------------------------------------------` `Interview Total` `Rating Marks`
`-------------------` `7.` `--------------------`	`-------------------------------------------` `8. 9.` `-------------------------------------------`
`1. 26.6`	`A 30 56.6`
`2. 32.0` `--------------------`	`A 30 62.0` `------------------------------------------`

¶44

 . In addition to the performance appraisal in
 the interview ratings, both the petitioner and
 respondent No.5 obtained 30 marks. In the final
 score respondent No.5 scored 62 out of 100 marks
 and the petitioner scored 56.6 out of 100 marks,
 and therefore it was respondent No.5 who was found
 to be more meritorious.

¶45

 10. The petitioner relied upon the decisions in
 the case of Union of India & Anr. Vs. Yogendra
Singh 1996(1)SLR (S.C.) Page-132; and Madhya
Pradesh Electricity Board Vs. S.S.Modh & Ors.
AIR 1997 S.C.3464, in support of the contention
 that respondent No.5 was not eligible for being
 considered for promotion to the said post. The
 said decisions would be of no help to the

¶46

 .[10].

¶47

 petitioner. As noted earlier the petitioner and
 respondent No.5 both possess the requisite
 qualifications and it cannot be accepted that the
 petitioner holds better qualification than
 respondent No.5. In the instant case, the
 promotion is not on the principle of

¶48

 "Seniority-Cum-Merit" and, therefore, even if the
 petitioner is senior, that by itself cannot be a
 ground to challenge the promotion granted to
 respondent No.5. As per the respondent-Bank’s
 Promotion Policy the promotion to Scale IV is on
 the basis of "Merit-Cum-Seniority", which
 necessarily implies that amongst the eligible
 officers, merit is to be taken into consideration
 and the more meritorious officer is appointed to
 the higher post.

¶49

 11. The petitioner had participated in the
 selection process without any protest. It is well
 recognised in law that once an officer
 participates in the selection process for
 promotion without any protest, he cannot be
 allowed to challenge the validity of the selection
 process on his failure to qualify for promotion.
 We may in this regard refer to the decision in the

¶50

 .[11].

¶51

 case of Suneeta Aggarwal Vs. State of Haryana
2000 I CLR (S.C.)825, as has been rightly relied
 upon by the respondent-Bank.

¶52

 12. In terms of the overall performance i.e.
 appraisal for three years and the interview
 ratings, it is respondent No.5 who was found to be
 more meritorious and as per the Promotion Policy
 of the respondent-Bank there is no extra weightage
 for officiation. The respondent-Bank has
 clarified in this regard that the petitioner was
 called upon to officiate solely because he was at
 Mumbai and if respondent No.5 was available at
 Mumbai, instead of the petitioner respondent No.5
 would have got the order for officiation. Hence,
 on all counts the petitioner’s challenge to the
 promotion of respondent No.5 is devoid of any
 merit.

¶53

 . In the premises, the Petition fails and the
 same is hereby dismissed. Rule stands discharged.

¶54

 [DR.S.RADHAKRISHNAN,J.]

¶55

 .[12].

¶56

 [SMT.V.K.TAHILRAMANI,J.]

K.M. Mishra v. Central Bank of India and Ors.

Case brief

What is this about?

What did the court decide?

K.M. Mishra v. Central Bank of India and Ors.

Case brief

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