The Honble Apex Court in the case of Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 had an occasion to deal with the washing off theory. It was held that if adverse remarks relate to a period, prior to an earlier promotion, they indeed can be treated as having lost their sting and being rendered weak subject to the rider that if they relate to dishonesty or lack of integrity, they can be considered to have not lost their strength fully so as to be ignored altogether (emphasise mine).
In the context of enunciation by the Honble Apex Court, the fact of the instant case indicate that the petitioner's misconduct for tampering with a certificate issued by the respondent Bank's Jaipur Office in a departmental enquiry culminated in punishment and placing him in the lowest rank of the pay scale. The misconduct pertained to the dishonesty of the petitioner and would not cease to be relevant for assessment of his suitability for promotion from Class-IV to the post of Assistant Care Taker in the Class-III cadre of the Bank even subsequent to his promotion within Class-IV service.
Rajasthan High Court at Jaipur Bench
Patel Ram Meena vs . Reserve Bank Of India Through ... on 27 July, 2015
S.B. Civil Writ Petition No. 1784/2015
HONBLE MR. JUSTICE ALOK SHARMA
The petitioner- a Class-IV cadre employee with the Reserve Bank of India (short the Bank), is aggrieved of his non-promotion to Class-III cadre on the post of Assistant Care Taker for the vacancies of the year 2015.
The petitioner, a scheduled Tribe, was appointed as a Mazdoor in the Class-IV cadre w.e.f 19.5.1980 with the respondent-Reserve Bank of India (hereinafter RBI). He was promoted within Class-IV cadre first on the post of Senior Official Attendant and thereafter as Head Office Assistant vide order dated 1.7.2007 and is presently working in the Cash Department. He was then eligible for the next promotion based on seniority and selection to the post of Assistant Care Taker in Class-III cadre. However since 2011 he has been over-looked and superseded on each occasion, last of which was in relation to the year 2015 on the ground that he did not satisfy the promotion criteria.
The case of the petitioner is that he has been arbitrary over-looked for promotion and superseded by respondent No.3- Chanda Ram Meena despite his being the senior most on the feeder post i.e. Head Office Attendant in the cadre of Class-IV and a ST to boot in which category a reserved post obtained for promotion against vacancies of 2015.
The main contention of the counsel for the petitioner is that promotions within Class-IV as to the post of Senior/Head Official Assistant as is reflected in the memorandum of settlement dated 24.10.2005 between the All India Reserve Bank Workers Federation and the Management of the Reserve Bank of India (on reduction/ merger of categories, introduced of new designations, time bound promotion scheme, revised scheme of switch over) were based of suitability determined with reference to Confidential Reports, Leave, vigilance record. The petitioner was thus evidently found suitable for promotion within the Class-IV cadre, and hence should have been similarly found for further promotion to the post of Assistant Care Taker. Yet the petitioner has been arbitrarily denied promotion on the purported ground of his lacking in suitability. Counsel submitted that albeit the fact of a departmental inquiry against the petitioner and consequent punishment therein, in 1998, of reduction in the lowest grade in the time scale of Class-IV visited upon the petitioner is indeed true, yet the said punishment could not have been taken into consideration in 2015 both for reason of being stale and for reason of it having been washed off on the earlier promotion on the basis of suitability within the Class-IV cadre. It has been submitted that the respondent-Bank has emphasized a stale incident and over-looked the petitioners recent and current performance on the feeder post held by him in a palpably unfair manner in finding him not suitable for promotion as Assistant Care Taker.
Mr. Khaspuria has relied upon the following judgments in support of his contention:
1. Rani Laxmibai Kshetriya Gramin Bank and Ors. Vs. Manoj Kumar Chak, AIR 2013 SC 2473;
2. B.V. Sivaiah and others Vs. K. Addanki Babu and others, AIR 1998 SC 2565; and
3. Ram Ashish Dixit Vs. Chairman, Purvanchal Gramin Bank Limited and Another, (2013) 6 SCC 309.
Per contra, Mr. S.M. Mehta, Sr. Advocate appearing with Mr. Sanjay Srivastava, for the respondent-Bank has submitted that promotion to various posts within the Class-IV cadre are fundamentally Time Bound and effected on the basis of memorandum of settlement dated 24.10.2005 between the All India Reserve Bank Workers Federation and the Management of Reserve Bank of India. The first Time Bound promotion after 20 years of service, is on the post of Senior Official Attendant and after 27 years on the post of Head Office Attendant. Referring to the Master Circular dated 2.7.2012 relevant to the promotion policy of the respondent- Bank, attention has been drawn to Class-III cadre inter-alia dealing with promotion to the post of Assistant Care Taker. Clause 3.1 provides that the appointments to the post of Assistant Care Taker should be based not so much on educational qualifications as on conduct, personality, experience in Military / Police / Territorial Army and the ability to control the maintenance / security staff. It has been further provided that the employees in all pay groups in Class-IV cadre are eligible for the post of Assistant Care Taker subject to seniority and suitability to be determined on the basis of service record and screening through interview. Eligible candidates are subjected to screening for promotion by a Selection Board containing not less than three members including the Head of the Office and an Officer belonging to SC/ST category. Sr. Counsel submitted that merely in view of the Time Bound promotion to the highest post in Class-IV service the wash off theory as invoked by the counsel for the petitioner will not be operative. It was submitted that while considering eligible candidates for further promotion to the post of Assistant Care Taker in the Class-III cadre, the entire service record of the candidate has to be taken into consideration for the determination of suitability. So considered, the petitioner was found to have been involved in a serious infraction of law and egregious misconduct of tampering with and forging a document issued by RBI to the petitioner in a prescribed format owing to which after a departmental inquiry, in the year 1998 the petitioner was found guilty. Owing to the seriousness of the charge proved it was proposed by the Executive Authority to dismiss him from service and a tentative order of dismissal even passed. Yet on humanitarian grounds invoked by the petitioner in his representation dated 18.6.1998, the tentative order of dismissal i.e. the proposed punishment was diluted to that of reduction of pay to the minimum stage of scale of pay, in which the petitioner then was, vide final order dated 19.8.1998. It has been submitted that this serious blotch for reason of dishonesty on the petitioners service, where he was retained in service only on humanitarian grounds, could not be over-looked by the Selection Committee while considering his entire service record while considering him for promotion from Class-IV cadre to the post of Assistant Care Taker in Class-III Cadre. And it was for this reason that the petitioner was over-looked for promotion not only in the year 2015 but also prior thereto in the year 2011, 2012, 2013 and 2014 also. Sr. Counsel emphasized the limitations of this Court in interfering with the decision of Select Committee on the question of promotion/s pointing out that unless a supersession/non-promotion were to be found by the Court as palpably arbitrary, unfair or malafide, there could be no interference therewith lest it affects the administrative discretion of the respondent- Bank in running its affairs and messaging its employees that promotional avenues even to Class-III posts were available and open only to those with integrity, reliability and good conduct.
Heard. Considered.
It is well settled that an employee of the government or any of its instrumentalities has only a right to consideration for promotion and not to promotion. It is also well settled that albeit the jurisdiction of the writ court under Article 226 of the Constitution of India can reach, on challenge made, injustice or arbitrariness wherever, yet where a challenge is to the correctness of assessments made by a Departmental Promotion Committee / Select Committee, a writ Court has, as a rule, restrained its hands and not interfered except in the cases of Wednesbury unreasonableness, ex-facie unfairness, bias and mala fides. The inquiry in this writ petition therefore, has to be whether the petitioner has been arbitrarily and illegally over-looked for further promotion to the post of Assistant Care Taker in the Class-III service and whether the Selection Committee acted mala fide and abused its powers in unfairly assessing adversely, the suitability of the petitioner to the promotional post.
It is an admitted fact, as evident from Annex.R/1 filed with the reply to the writ petition that the petitioner was under a serious cloud and charged with misconduct of forging and fabricating the certificate issued by the respondent Bank in an inquiry commencing with the charge-sheet dated 30.9.1994. The Enquiry Officer after due process and the competent authority thereafter found the charges proved against the petitioner extremely serious in nature and the conduct of the petitioner as the Bank's employee unacceptable. Therefore, a penalty of dismissal of the petitioner from service was proposed by a tentative order. However, finally on humanitarian grounds, the proposed penalty of dismissal was reduced to that of reduction of pay to minimum stage of scale of pay vide order dated 19.8.1998. The order of penalty visited upon the petitioner vide order dated 19.8.1998 came up on petitioner's challenge for consideration before this Court in SBCW P. No. 4300/2001 which was decided on 8.5.2003. Thereon this Court found that the petitioner was rightly held guilty of misconduct under Regulation 47 of the Reserve Bank of India (Staff Regulations) 1948 (hereinafter 'the Regulations of 1948') and observed that the petitioner as an employee of the RBI was required to have impeccable integrity and the audacity of the petitioner in respect of the misconduct found could not be treated lightly. The Court in the circumstances upheld the punishment imposed upon the petitioner by lowering his pay to the minimum scale as it could not be treated to be harsh or disproportionate.
One of the issues which arises in the facts of the case is as to whether the petitioner in the circumstance was suitable for promotion on the post of Assistant Care Taker despite the misconduct found and punishment visited upon him on 19.8.1998. Mr. Khaspuria, counsel for the petitioner has invoked the wash off' theory on the ground that the petitioner having been earlier promoted to the post of Head Official Attendant on 1.7.2007, after the punishment of 19.8.1998, the said punishment could not adversely affect the petitioner's subsequent consideration to the next higher post. I find the contention of the counsel for the petitioner untenable. For one; promotions of the petitioner within Class-IV service, Time Bound ones, were in terms of the Settlement dated 24.10.2005. The suitability for Time Bound promotion within Class-IV cadre in terms of the settlement dated 24.10.2005 between the Management of Reserve Bank of India and its workers would be qualitatively different from a suitability to be adjudged for a post in the higher Class-III cadre such as that of the the Assistant Care Taker. Further, the promotions within Class-IV cadre entailed a different and lower level of responsibility than would be entailed on promotion to the post of Assistant Care Taker in the superior Class-III cadre. More importantly, the suitability for promotion as Assistant Care Taker assessable under RBI's Master Circular on Promotion Policy for Class-III and IV employees issued on 2nd July 2012 was to be based on the evaluation of the entire record (emphasize mine) of the employee. The entire record obviously would include the punishment and reasons therefor visited upon the petitioner when he was found guilty of forgery / fabrication. A misconduct and punishment upheld upto this Court in the petitioner's own S.B. Civil Writ Petition No. 4300/2001 decided on 8.5.2003.
The Honble Apex Court in the case of Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 had an occasion to deal with the washing off theory. It was held that if adverse remarks relate to a period, prior to an earlier promotion, they indeed can be treated as having lost their sting and being rendered weak subject to the rider that if they relate to dishonesty or lack of integrity, they can be considered to have not lost their strength fully so as to be ignored altogether (emphasise mine).
In the context of enunciation by the Honble Apex Court, the fact of the instant case indicate that the petitioner's misconduct for tampering with a certificate issued by the respondent Bank's Jaipur Office in a departmental enquiry culminated in punishment and placing him in the lowest rank of the pay scale. The misconduct pertained to the dishonesty of the petitioner and would not cease to be relevant for assessment of his suitability for promotion from Class-IV to the post of Assistant Care Taker in the Class-III cadre of the Bank even subsequent to his promotion within Class-IV service. The reason lies in the fact that Rule 1.4 read with Rule 3 of the RBIs Master Circular on Promotion Policy for Class-III & IV employees provides that promotion to the posts in Class-III as of Assistant Care Taker was to be based on consideration of the entire record of an employee in Class-IV for determination of suitability. Seniority of the employee was relevant only for the purposes of zone of consideration. Promotion to the post of Assistant Care Taker in Class-III from the feeder cadre of Class-IV is not on the basis of seniority or even seniority-cum-merit where only minimum merit for promotion is to be evaluated but on the basis of suitability determined with reference to the entire service record of the employee.
In the circumstances I find no arbitrariness or unfairness attributable to the Selection Committee in taking into consideration the punishment visited upon the petitioner under the order dated 19.8.1998 and holding that he was not suitable for promotion as Assistant Care Taker as the said punishment related to the petitioner's integrity and dishonesty. The argument of mala fides vitiating the petitioner's supersession to the post of Assistant Care Taker is also a non- sequitur as the members of the Select Committee or even one of them have not been impleaded eo nomine nor in-fact any allegations regarding them made in the writ petition. The Select Committee was thus unable to hold that an employee found guilty of serious misconduct in 1998 and barely managing to avoid consequent punishment of dismissal only on humanitarian ground could be entitled to promotion to a post where the criteria was suitability.
The Judgments relied upon by the petitioner of Rani Laxmibai Kshetriya Gramin Bank and Ors. Vs. Manoj Kumar Chak, B.V. Sivaiah and others Vs. K. Addanki Babu and others, and Ram Ashish Dixit Vs. Chairman, Purvanchal Gramin Bank Limited and Another (supra), all relate to cases of promotions based on seniority-cum-merit. Such a situation does not obtain in the present case, as the promotion in issue was to be on the basis of suitability determinated on consideration of the entire service record of the employee by the Select Committee. The letter dated 10.2.2003 under the hand of Dy. General Manager, Reserve Bank of India, Mumbai to all concerned states that as directed by the Committee of the Central Board of RBI particulars of all instances of misconduct and punishment imposed during the entire service of an employee (all categories) be furnished at the time of his / her consideration for promotion. The Select Committee bound by the promotion Rules and circular has therefore been consistent in over-looking the petitioner for promotion as Assistant Care Taker beginning 2011 through 2015.
Counsel for the petitioner then submitted that 'stale' part of the petitioner's service record relating to 1998 was emphasized by the Select Committee which over-looked that no adverse material obtained thereafter on the record against the petitioner. Hence, the act of the Select Committee Meeting of December 2014 superseding the petitioner on the post of Assistant Care Taker against the vacancy of 2015, was wholly arbitrary. The argument only deserves to be noticed for being rejected as it is de hors the mandate of the respondent Bank's extant Promotion Policy and the circular dated 10.2.2003 that the service record of an employee has to be considered at the time of promotion.
Mr. Khaspuria- counsel for the petitioner finally invoked equity and effectively the sympathy of this Court for reason of the petitioner having been served more than his fair share of suffering for an incident of 1994 (20 years ago) leading to the punishment 1998 owing to which he has been superseded on five occasions.
In Raghunath Rai Bareja Vs. Punjab National Bank & Ors, (2007) 2 SCC 230 the Hon'ble Apex Court has referred to the legal maxim i.e Dura Lex Sed Lex i.e. law is hard, but it is the law. It is also well settled that where there is a conflict between law and equity, it is the law which will prevail. In Sudhir Kumar Consul Vs. Allahbad Bank, (2011) 3 SCC 486, the Hon'ble Apex Court has held that sympathy of the Court cannot over-ride Rules and Regulations.
The upshot of the above consideration of the petitioner's case is that, it is without merit and hence liable to be dismissed.
Dismissed.
(Alok Sharma) J.
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