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Leela Bai Vs. Reserve Bank of India (by Chief Accountant) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1970)ILLJ277Ker
AppellantLeela Bai
RespondentReserve Bank of India (by Chief Accountant) and ors.
Cases ReferredS.R. Tewari v. District Board
Excerpt:
- - as i have said, they are more political in character and the justiciability of a failure to appoint or promote a particular member of the scheduled caste for the reason that if the instruction had been followed he would have been appointed, or promoted, is doubtful, as the member seeking to enforce the claim founded on the instructions would necessarily fail to establish a specific right in him......the orders of promotion of respondents 4 to 6 and 8 to the cadre of sub-accountants in the reserve bank of india, superseding the claims of the petitioner, and to issue the necessary writ or order directing respondents 1 to 3 to appoint the petitioner in the grade of sub accountant with effect from 14 december 1964 or in the alternative to direct respondents 1 to 3 to consider the claims of the petitioner for promotion to the grade of sub-accountants in accordance with the rules and with effect from 14 december 1964.2. the petitioner was appointed as a clerk, grade ii, in the bank in 1955. after about five years she was promoted as a clerk in grade i. petitioner says that she has passed part i of the c.a.i.lb. examination conducted by the indian institute of bankers, and was.....
Judgment:

K.K. Mathew, J.

1.This is an application for the issue of the appropriate writ or direction quashing the orders of promotion of respondents 4 to 6 and 8 to the cadre of sub-accountants in the Reserve Bank of India, superseding the claims of the petitioner, and to issue the necessary writ or order directing respondents 1 to 3 to appoint the petitioner in the grade of sub accountant with effect from 14 December 1964 or in the alternative to direct respondents 1 to 3 to consider the claims of the petitioner for promotion to the grade of sub-accountants in accordance with the rules and with effect from 14 December 1964.

2. The petitioner was appointed as a clerk, grade II, in the bank in 1955. After about five years she was promoted as a clerk in grade I. Petitioner says that she has passed Part I of the C.A.I.LB. examination conducted by the Indian Institute of Bankers, and was qualified for being selected to the next higher grade which is that of sub-accountant. There was a selection in April 1963 from the clerks in grade I for appointment to the grade of sub accountant. Petitioner's seniors alone were then promoted and the petitioner has no grievance about the selection. Thereafter on 10 December 1964 there was another selection and the petitioner was called for interview by the selection board. About ten clerks in grade I were called for interview and some of the petitioner's seniors were selected. The petitioner has no complaint about the selection of her seniors, but she complains about the selection of respondents 4 to 6 and 8 as they are juniors to the petitioner. The contention of the petitioner is that according to the regulations of the Reserve Bank of India the selection of respondents 4 to 6 and 8 ignoring the claim of the petitioner was unauthorized. The petitioner also contends that the selection of her juniors was mad a mala fide.

3. The question for consideration is whether the petitioner was entitled to be promoted to the post of sub-accountant and whether the promotion of her juniors to the post in preference to her was improper. counsel for the petitioner submitted that according to the Reserve Bank of India (Staff) Regulations, 1948, hereinafter called the regulations, which is marked as Ex. R. 2 in this case, the petitioner was entitled to be promoted to the post of sub-accountant as she had the necessary qualification for the same. Counsel submitted that the regulations have been framed under Section 58 of the Reserve Bank of India Act, and that according to the regulations seniority-cum-fitness is the criterion for promotion to the post of sub-accountant. I do not think that there is anything in the regulations which justifies this contention. Rule 29 of the Regulations is as follows:

All appointments and promotions shall be made at the discretion of the bank and notwithstanding his seniority in a grade no employee shall have a right to be appointed or promoted to any particular post or grade.

It would appear from this rule that the question of appointment and promotion is exclusively a matter within the discretion of the bank, Therefore, even if the regulations are framed in pursuance of tie provisions of Section 58 of the Reserve Bank of India Act, I do not think that the petitioner has got a justifiable claim unless perhaps it is established that the discretion was exercised on irrelevant considerations or that it was exercised mala fide. Counsel for the petitioner relied upon Rule 47 of the regulations and submitted that it was by way of punishment that the petitioner was not promoted, and that as no charges have been communicated to her and her explanation called for, the proceedings are invalid. The material portion of Rule 47(1) is as follows;

(1) Without prejudice to the provisions of other regulations, an employee who commits a breach of the regulations of the bank, or who displays negligence, inefficiency or indolence, or who knowingly does anything detrimental to the interests of the bank or in confect with its instructions, or who commits a breach of discipline or is guilty of any other act of misconduct shall be liable to the following penalties:

(b) delay or stoppage of increment or promotion.

The procedure for imposing the penalty is then stated. It seems to me that the rule has no relevancy except in the context of delay or stoppage of promotion by way of penalty. There are no materials on record for me to say that it was as a measure of punishment that the petitioner was not promoted to the post, and I have not been referred to any authority, where it has been held that simply because a person has not been promoted to selection post that, would be considered as a punishment which would justify the application of the procedural provisions dealing with the imposition of punishment. I think that Rule 47 has no application in this case.

4. Counsel for the petitioner then submitted that the petitioner belongs to the scheduled castes and according to the instructions issued by the Central Government persons belonging to the scheduled caste should be given preferential treatment in the matter of appointment and promotion in all public undertakings. Counsel referred me to Exs. P. 1 and P. 4 to P. 9 to substantiate this submission. Article 335 of the Constitution was also relied in this connexion and it was said that the instructions Exs. P. 1 and P. 4 to P. 9 have been issued in pursuance of the provisions of the article and therefore these instructions have got the force of law, and should be implemented by all public undertakings. The argument was that the Reserve Bank of India was bound to implement the spirit of the directions contained in Exs. p. l and P. 4 to P. 9, and if this had been done petitioner would have been selected to the post. I am not quite clear whether Article 335 was intended to confer any right on members of the scheduled castes. That article is admonitory in character. Whatever that might be there is no specific direction issued as far as the Reserve Bank of India is concerned as to the proportion to be observed in the matter of appointments or promotions from the different communities, and even assuming that a proportion has to be maintained, there is nothing in the record to show that it is not being maintained. I do not think that a Court of law can enforce the directions contained in Exs. P. l and P. 4 to P. 9, at the instance of a member of the scheduled caste unless it is shown that he is entitled to be appointed or promoted if these instructions are applied at a given moment. The instructions are general in character and are no doubt intended to give adequate representation to the scheduled castes in all public undertakings. As I have said, they are more political in character and the justiciability of a failure to appoint or promote a particular member of the scheduled caste for the reason that if the instruction had been followed he would have been appointed, or promoted, is doubtful, as the member seeking to enforce the claim founded on the instructions would necessarily fail to establish a specific right in him. Besides, it is clear from Ex. R. 1 dated 8 July 1960 that these instructions are not binding on the Reserve Bank of India. The affidavit filed by respondent 7, the Government of India, would make it clear that these instructions are not intended to be observed by the Reserve Bank of India. I have, therefore, no hesitation to overrules this contention of the petitioner.

5. Counsel for the petitioner submitted that if the regulations are not considered as rules framed under Section 58 of the Reserve Bank of India Act, the entire proceedings for the selection of candidates for the post would be vitiated. His argument was that the framing of rules under Section 58, laying down the qualifications for the post, and the method of selection to it, and other allied matters, was absolutely essential and that executive instructions in the form of rules cannot take the piece of rules to be framed under the section. I am not Quite clear whether the framing of the rules under Section 58 of the Act laying down the aforesaid matters was absolutely essential. In the case reported in Murugesan v. Collector of North Arcot (1966) 2 M.L J. 290, Chandra Reddi, C J., has considered a similar question. The learned Judge has adverted to all the relevant rulings on the point and has come to the conclusion that when rules are directed to be framed by an agency for determining the manner in which an act enjoined or directed by the parent statute is to be done, it is not always necessary that rules should be framed for doing the act. That will depend upon several other considerations. The language of the section requiring the framing of the rules and the nature of the act enjoined or directed by the statute will have important bearing on the question. Looking at the language of Section 58, I do not think that the framing of rules under the section laying down the matters referred to was essential for the validity of the selections made to the post.

6. The next argument of counsel was that the selection was discriminatory, and that since relevant factors have been omitted to be considered and irrelevant circumstances taken into consideration, the discretion has not been properly exercised. In selection an employee for promotion, the bank is exercising only a managerial function: further the suitability of an employee for promotion is assessed on the basis of various factors. The statement in Para. 17 of the counter-affidavit on behalf of respondent 1 would make it clear that the bank has evolved certain considerations for making selections to the post in question, and those considerations appear to me to be germane in view of the heavy responsibilities in the discharge of the duties attached to the post. Exhibits R. 6 to R. 10 would indicate the policy of bank in the matter of appointment to this and other posts and also lay down the method of selection to the poet in question, In Para. 17 of the same counter-affidavit it is stated that promotion to the supervisory cadre is on the basis of the particular employee being found suitable by a selection board, that seniority of the employee is only one of the factors that will be taken into account, that other factors such as general intelligence, efficiecy, initiative, knowledge of the work in the various sections of the bank, are also material considerations for selection, and that the more fact that there are no adverse remarks against; the employees in the service record would not confer on him any right for promotion to the post. Where the post to which promotion is claimed is a selection post, it has been held in a number of cases that the employee has no right of promotion but only a right to have his case also considered, and if, on a bona fide consideration of all the relevant circumstances, a selection is made, it will not be open to a Court to upset the selection. The contention that the selection was not based on relevant considerations has no basis in view of the fact that such considerations alone were laid down in Exs. R. 6 to R. 10 for the guidance of the selection committee. Counsel for the petitioner submitted that it is only after the counter-affidavit on behalf of respondent; I was filed is this case that it was known that the post of sub accountant is a selection post and that the assumption till then was that promotion to the post was on the basis of seniority-cum-fitness, and therefore, it was against the principles of natural justice to have made the selection on the basis that it was a selection post. I do not know how a question of violation of the principles of natural justice arises here. If the petitioner did not know that the post was a selection post, that was not the fault of the bank. Assuming that the petitioner was not aware that the post was a selection poet, how does that effect the situation Petitioner's counsel said that the petitioner had no time to prepare for the interview on the basis that the post was a selection post, and therefore the interview was conducted against the principles of natural justice. There is no substance in this argument. I do not think that the petitioner should have been given any previous intimation as regards the nature and character of the interview or the manner in which the interview was going to be conducted.

7. Counsel for respondent 1 argued on the basis of a series of rulings that the relationship between the petitioner and respondent 1 bank is contractual in character and that this Court should not interfere in a matter sounding only in contract without any statutory flavour. It was also submitted that the petitioner had no right fundamental or otherwise to be enforced, as she has no right to be promoted to a selection post, and therefore, no writ under Article 226 can be issued. Some of the rulings cited to show that the relationship between the bank and the petitioner was contractual in character are: Vidyodaya University v. Silva (1964)3 All E.R. 865, Rama Varma v. Cochin Devaswom Board, Trichur (by its Secretary) and Ors. 1967-I L.L.J. 350 and Lekhraj v. Deputy Custodian, Bombay : [1966]1SCR120 . The Reserve Bank of India is no doubt constituted under a statute and even accepting the contention of the petitioner that the regulations are rules framed under Section 58 of the Reserve Bank of India Act. I find great force in the submission of counsel for respondent 1 that the relationship between the bank and the petitioner is contractual. No doubt petitioner's counsel referred me to the decision in S.R. Tewari v. District Board, Agra (now the Antarim Zila Parished, Agra, through its secretary) and Anr. 1964 -I L.L.J. 1 and submitted that in this case if the petitioner's service had been terminated, she could have agitated the question under Article 226 because her appointment was on the basis of statutory rules. It is not necessary for me to consider the exact scope of that ruling in this case or the question whether the regulations have statutory force or not. Even if the regulations are statutory in character, that will not make any difference. Rule 29 of the Regulations is clear that all appointments and promotions are entirely within the discretion of the bank.

8. The petition fails. I dismiss it, but in the circumstances, without any order as to costs.


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