Dismissed

N.K.Garg v. Punjab National Bank

Himachal Pradesh HC22 Sept 2017CWP/11889/2011

Case brief

AI extract

What is this about?

Petitioner challenged denial of promotion and claim for notional seniority as ex-serviceman against 30% reserved quota. Court dismissed petition citing prior final judgment distinguishing weightage from seniority and noting non-joinder of senior employees.

What did the court decide?

Promotion claim and request for notional seniority backdating dismissed; petition deemed defective due to non-joinder of necessary parties.

N.K.Garg Vs Punjab National Bank — Pension and Retirement Benefits | Himachal Pradesh HC (2017)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

CWP No. 11889 of 2011 Judgment reserved on: 15.9.2017 Date of decision: 22. 9.2017

¶3

Nand Kishore Garg …… Petitioner Vs. Punjab National Bank and others ….. Respondents

¶4

Coram

¶5

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

¶6

Whether approved for reporting?1 No

¶7

For the petitioner : Mr. Onkar Jairath, Advocate. For the respondents : Mr. Anup Rattan, Advocate.

¶8

Tarlok Singh Chauhan, Judge

¶9

This writ petition has been filed claiming therein the following substantive reliefs:

¶10

“(i) That your Lordships may graciously be pleased to issue the writ in the nature of certiorari or any other appropriate writ, order or direction to the respondents quashing the impugned Annexure P-11 dated 20.9.2011 and Annexure P-6 dated 17.12.1998.

¶11

(ii) That writ in the nature of mandamus or any other appropriate writ order or direction directing the respondents to consider the petitioner for promotion and promote him to the post of Officer Junior Management Grade Scale-I from 8^th November, 1993 with all consequential benefits such as arrears of pay, allowances and also consider the petitioner for further promotion.”

¶12

The facts, in brief, as set out in the petition may be

¶13

noticed.

¶14

The petitioner joined the Indian Air Force as Airman on 17.12.1963 and retired from service of the Indian Air Force in the Whether thereporters of thelocal papers may beallowedtoseetheJudgment? Yes

¶15

…2…

¶16

month of December, 1978. Thereafter, he joined the respondent-Bank as Clerk-cum-Typist on 31.12.1978. On 11.6.1987 the respondentBank issued circular No.1026 (Annexure P-1) wherein it was provided that weightage would be provided to the ex-servicemen for the period of service rendered by them in defence which will be in the ratio of 5 : 1 subject to a maximum of 2 years after they have rendered atleast 3 years of confirmed service in the bank. This was followed by another circular No. 1285 dated 6.6.1991 (Annexure P-2). On 19.11.1993 the petitioner submitted representation for granting him the benefit in terms of circular No. 1026 dated 11.6.1987.

¶17

On 28.12.1994, the request of the petitioner was accepted and vide order dated 3.10.1997 he was promoted as Officer Junior Management Grade Scale-I on the basis of his seniority, but not on the basis of circular dated 11.6.1987 (Annexure P-1). This constrained the petitioner to file representation on 24.7.1998. However, the same was rejected vide decision dated 17.12.1998. This led to filing of CWP No. 192 of 1999 and the same was allowed by the learned Single Judge of this Court vide judgment dated 24.6.2004 and the respondents were directed to re-consider the claim of the petitioner in accordance with law and in light of the observations made in the judgment. The judgment passed by the learned Single Judge was set-aside by the Hon’ble Division Bench in LPA No. 36 of 2004. However, while disposing of the appeal, it was observed that in case the petitioner’s claim for promotion against 30% quota reserved for Clerks including Special Assistants has not been

¶18

…3…

¶19

taken, the respondents will rectify the mistake by doing the needful within one month.

¶20

The petitioner being aggrieved by the decision in LPA No. 36 of 2004, preferred Civil Review No. 76 of 2010, even though the said review petition was dismissed. However, it clarified that the petitioner should approach to the bank for grant of benefit of 30% reserved quota for promotion to the post of JMG Scale-1.

¶21

The petitioner accordingly on 20.7.2011 made a detailed representation, however, the same was rejected by the respondents vide its order dated 20.9.2011 which has been assailed before this Court on various grounds as taken in the memo of petition.

¶22

The respondents have filed reply wherein number of preliminary objections has been taken to the effect that the petitioner has unnecessarily dragged the respondents into uncalled for litigation since 1999. On merits, it is averred that the petitioner has been rightly promoted in accordance with seniority under 30% quota in the year 1997, therefore, the petition deserves to be dismissed.

¶23

I have heard learned counsel for the parties and gone through the records of the case carefully and meticulously.

¶24

Learned counsel for the petitioner would strenuously argue that his case was required to be considered against 30% quota meant for Senior Clerks including Special Assistants and not against 50% vacancy and this benefit has been wrongly denied to the petitioner. While on the other hand, Mr. Anup Rattan, learned counsel for the respondents would argue that all these contentions raised

¶25

…4…

¶26

therein are not available to the petitioner in light of the judgment rendered by this Court in LPA No. 36 of 2004.

¶27

At the outset, it may be observed that the controversy with respect to grant of weightage and concept of seniority has been laid to rest by a judgment of this Court in LPA No. 36 of 2004 wherein it was observed as under:

¶28

“4. According to the learned counsel for the petitioner, the benefit of Annexure P-1 is intended to give two years of seniority ahead of others. We are afraid that the contention cannot be appreciated. Seniority is one thing and the weightage is another thing. Weightage does not ensure to the benefit of seniority. What is intended and what is provided is not the seniority for the Ex-servicemen or other direct recruits, but only weightage of two years for the purpose of participation in the selection process for the 50% promotion quota. In other words, when Clerks/Special Assistants have to wait for a minimum period of four years for participating in the selection process for promotion, the Ex-servicemen need only to wait for two years. Nothing more and nothing less could be earned from Annexure P-1, Circular. We find from the judgment of the learned Single Judge that two years’ weightage has been taken as two years’ seniority, as is granted in Himachal Pradesh under the Demobilized Armed Personnel Forces Rules, 1972. That is not what is intended in the Circular. Therefore, we set aside the judgment of the learned Single Judge.”

¶29

It is thereafter that this Court proceeded to pass the following

¶30

directions:

¶31

“ 5. However, we make it clear that taking note of the date on which the petitioner became Senior clerk/Special Assistant, he should be considered for promotion against the 30% quota, reserved for Clerks including Special Assistants, which is only on the basis of seniority-cum-absence of demerits. In case this has not been done, the Bank will examine the

¶32

…5…

¶33

records and rectify the mistakes, if any, committed in not considering the petitioner against 30% quota reserved for Senior Clerks/Special Assistants in the order of only seniority subject of course to the absence of demerit. The needful, if not already done, shall be done within one month from the date of production of a copy of this judgment. “

¶34

It is not in dispute that the Circular dated 11.6.1987 (Annexure P-1) and thereafter Circular dated 6.6.1991 (Annexure P-2) were subject matter of LPA No. 36 of 2004 wherein, it has been categorically held that two years weightage cannot be taken to mean two years seniority.

¶35

It would be noticed that the entire premise of the petitioner case is that though he was posted as Special Assistant w.e.f. 18.2.1991. However, in view of the instructions contained in Annexure P-1, which inter alia provides for certain benefits to the Exservicemen, his date of posting as Special Assistant should be treated as October, 1989 or any date anterior to that and he should be conferred the seniority notionally w.e.f. 1989.

¶36

It is not in dispute that in the year 1993, the respondent initiated the process to fill up the post of JMG Scale-1 and the candidature of all the eligible persons i.e. whose date of posting as Special Assistant was of the year 1989 or earlier to that were considered under the 30% quota reserved for Senior Clerks including Special Assistants on the basis of seniority-cum-absence of demerits. However, insofar as the candidature of the petitioner is concerned, the same was not considered in the said selection process on the ground that he had been posted as Special Assistant w.e.f. 18.3.1991 and therefore, became eligible for consideration for promotion to the

¶37

…6…

¶38

officer cadre through the channel of seniority-cum-absence of demerit only in the year 1997 and upon consideration he was approved for promotion to JMGS-1.

¶39

At this stage, Mr. Onkar Jairath, learned counsel for the petitioner would still argue that in terms of Circular Annexure P-1 the seniority of the petitioner was to be notionally fixed on 18.3.1989. This contention cannot be accepted as I am of the considered view that the petitioner is trying to rake up the controversy which has already been decided and has attained finality in LPA No. 36 of 2004. As noticed earlier, this Court has categorically held that the concept of weightage and seniority are two different concepts as the weightage does not ensure to the benefit of seniority and what is intended and provided is not the seniority for the Ex-servicemen or other direct recruits, but only weightage of the period as specified in the Circular for the purpose of participation in the selection process for the 50% promotion quota or for that matter 30% quota and therefore, in no event could the petitioner’s seniority be notionally fixed on 18.3.1989 instead of 18.3.1991 as this would amount to giving seniority to the petitioner from an earlier date which is impermissible in law and more particularly in light of the judgment rendered by this Court in LPA No. 36 of 2004.

¶40

Even otherwise, the Circular Annexure P-1 is only for the limited purpose of computing the minimum length of service for promotion from one grade to another. The instructions for extension of the weightage to the defence service for the purpose of posting against special allowance carrying posts came into effect vide

¶41

…7…

¶42

Circular dated 6.6.1991 (Annexure P-2) and the ex-servicemen re-employed were advised to exercise their option as to whether they would like to avail the above benefit for the purpose of promotion or for the purpose of posting on posts carrying special allowance. However, before the Circular i.e. Annexure P-2 came into operation, the petitioner had already been posted as Special Assistant i.e. a post carrying special allowance w.e.f. 18.3.1991 in terms of the guidelines of the Bank. The petitioner exercised his option on 24.12.1991 to avail the benefit of the weightage of service rendered by him in armed forces for the purpose of promotion. However, since the petitioner had joined the service of the Bank in the year 1978, he was otherwise eligible for promotion from Clerical cadre of Officer cadre. As such, there was no occasion for the respondent to extend the benefit of weightage of defence service for the purpose of promotion.

¶43

Further, as already observed above, this Court for the reasons stated in the order dated 20.9.2011 passed by the respondents in compliance to the directions passed by this Court in Review Petition No. 76 of 2010 and LPA No. 36 of 2004, has no difficulty in upholding the same as it has been passed strictly in accordance with the directions passed by this Court. On the same analogy and for the same reasons, the decision of the respondent dated 17.12.1998 (Annexure P-6) also deserves to be upheld.

¶44

In view of the aforesaid discussion, this Court has no hesitation to conclude that the claim put forth by the petitioner is totally misconceived and is based upon the complete misreading of Annexures P-1 and P-2 as also the judgment rendered by this Court

¶45

…8…

¶46

in LPA No. 36 of 2004 which clearly delineate the difference between the weightage and seniority and the said judgment having attained finality cannot be reopened in these proceedings. Thus, this Court has no difficulty to hold that the present petition being not only misconceived but devoid of any merit, deserves to be dismissed.

¶47

There is yet another reason why the writ petition as filed by the petitioner cannot be maintained, the petitioner has sought his promotion over and above the following officers:

¶48

Sr.No.	Name of the employee	Date of joining as SA
1.	Sh. P.C. Verma	13.10.1989
2.	Sh. Vivek Bhatnagar	13.10.1989
3.	Sheela Rana	26.10.1989
4.	Rajinder Singh	11.11.1989

¶49

Admittedly, none of the aforesaid persons have been impleaded as party respondent whose seniority is only likely to be affected in case the writ petition is allowed.

¶50

It is well settled in law that no adverse order can be passed against persons who have not been made parties to the litigation.

¶51

A three-Judge Bench of the Hon’ble Supreme Court in Prabodh Verma and others v. State of Uttar Pradesh and others(1984) 4 SCC 251 while dealing with the constitutional validity of two Uttar Pradesh Ordinances which had been struck down by the Division Bench of the Allahabad High Court on the ground that the provisions therein were violative of Articles 14 and 16(1) of the

¶52

…9…

¶53

Constitution of India. In that context, a question arose whether the termination of the services of the appellants and the petitioners therein as secondary school teachers and intermediate college lecturers following upon the High Court judgment was valid without making the said appointees as parties. Learned Judges observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects; the core defect was that of non- joinder of necessary parties, for respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers and those who were vitally concerned, namely, the reserve pool teachers, were not made parties - not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. Thereafter the Court ruled thus: (SCC pp. 273-74, para 28)

¶54

“28……The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to

¶55

…10…

¶56

have dismissed that petition for non-joinder of necessary parties."

¶57

In Indu Shekhar Singh and others v. State of U.P. and others(2006) 8 SCC 129, the Hon’ble Supreme Court held as under (SCC p.151, para 56)

¶58

"56. There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority."

¶59

In Rashmi Mishra v. M.P. Public Service Commission and others (2006) 12 SCC 724 , after referring to Prabodh Verma case (supra) and Indu Shekhar Singh case (supra), the Hon’ble Supreme Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Hon’ble Supreme Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein.

¶60

In Tridip Kumar Dingal and others v. State of West Bengal and others ( 2009) 1 SCC 768 , the Hon’ble Supreme Court concurred with the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without

¶61

…11…

¶62

affording an opportunity of hearing to them, the selection could not be set aside.

¶63

In Public Service Commission, Uttaranchal v. Mamta Bisht and others, (2010) 12 SCC 204, the Hon’ble Supreme Court, while dealing with the concept of necessary parties and the effect of non-impleding of such a party in the matter where the selection process had been questioned and assailed, observed as under (SCC pp.207-08, para 9)

¶64

" 9. ....in Udit Narain Singh Malpaharia v. Board of Revenue AIR 1963, SC 786 , wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'Code of Civil Procedure') provides that nonjoinder of necessary party be fatal. Undoubtedly, provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 Code of Civil Procedure but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965, SC 1153, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706 and Sarguja Transport Service v. STAT (1987) 1 SCC 5".

¶65

In J.S. Yadav v. State of Uttar Pradesh and another,

¶66

(2011) 6 SCC 570 , the Hon’ble Supreme Court held that (SCC p. 583, para 31)

¶67

…12…

¶68

“31. No order can be passed behind the back of a person adversely affecting him and such an order, if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.”

¶69

It was further held that: (SCC p. 583, para 31)

¶70

“31. …. The litigant has to ensure that the necessary party is before the Court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity.”

¶71

In Vijay Kumar Kaul and Ors. v. Union of India and Ors.(2012) 7 SCC 610, the Hon’ble Supreme Court ruled thus: (SCC p.619, para 36)

¶72

“ 36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the Appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant."

¶73

Recently in State of Rajasthan v. Ucchab Lal Chhanwal (2014) 1 SCC 144 , the Hon’ble Supreme Court opined that: (SCC p.149, para 14)

¶74

…13…

¶75

“14. ….Despite the indefatigable effort, we are not persuaded to accept the aforesaid preponement, for once the Respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice."

¶76

Thus, what can be taken to be well settled in view of the aforesaid law expounded by the Hon’ble Supreme Court is that where all the appointees against whom the petitioner is seeking relief have not been impleaded, the writ petition is defective and no relief whatsoever can be granted to the writ petitioner.

¶77

In view of the aforesaid discussion, there is no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s) if any, also stands disposed of.

¶78

September 22, 2017. (Tarlok Singh Chauhan), (GR) Judge

N.K.Garg v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

N.K.Garg v. Punjab National Bank

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Prem Singh Vs Abnash Chander Mehra

Bhajan Dass Vs Jai Karan Dass

Om Parkash Laceria Vs Punjab National Bank

Dinesh Kumar Vs Suresh Kumar

Dinesh Kumar Vs Suresh Kumar

Dinesh Kumar Vs Karam Singh