Hon'ble Ritu Raj Awasthi, J.
Heard Sri S.K.Kalia, learned Sr. Advocate, appearing for the petitioners and Sri N.K.Seth assisted by Sri G.K.Srivastava, learned counsel for the respondents-Bank.
These are the three writ petitions which involve the common question of law and facts and, therefore, the same have been heard together and are being disposed of by the common judgment and order.
The petitioners had sought voluntary retirement from the service of the State Bank of India under the scheme known as 'SBI Voluntary Retirement Scheme' (hereinafter referred to as the 'Scheme'), who were, though permitted voluntary retirement but the promotions granted to the petitioners have been withdrawn. The orders accepting the voluntary retirement were passed on different dates, namely; in the case of P.K. Kalia on 28.3.2001 and that of Syed Ejaz Haider on 23.3.2001 and in the case of U.C.Sanghi on 13.3.2001, effective from 31.3.2001.
The promotion was withdrawn in the case of P.K.Kalia on the date when his voluntary retirement was accepted i.e. 28.3.2001 and in the case of Syed Ejaz Haider the promotion was withdrawn w.e.f. 23.3.2001 and in the case of U.C. Sanghi the promotion was withdrawn from 31.3.2001. At the time of voluntary retirement P.K.Kalia and Syed Ejaz Haider were working in MMG Scale-II whereas U.C.Sanghi was working as an officer belonging to SMG Scale-IV. As a result of withdrawal of the promotions, P.K.Kalia and Syed Ejaz Haider stand reverted in JMGS-I and U.C.Sanghi in MMGS-II and consequently their perks and emoluments were also paid as per the reverted position.
When these writ petitions were filed, a Division Bench of this Court had passed an interim order by means of which the orders withdrawing the promotions were stayed, but learned counsel for the petitioners say that despite the aforesaid interim orders, the benefit of the same has not been extended to the petitioners and the position remains as it was on the date of passing of the orders of withdrawal of the promotions.
The sole question which requires consideration in the matter is as follows:
Whether the promotions of the petitioners could have been withdrawn while accepting their request for voluntary retirement under the 'SBI Voluntary Retirement Scheme' merely because they have not completed two years rural or three years semi-urban assignment (either wholly or partly), during their service tenure though no fault can be attributed to them for not undergoing these postings?
For deciding the controversy, we would have a glance of the scheme of voluntary retirement introduced by the Bank.
The State Bank of India floated a scheme for voluntary retirement in December 30, 2000. This scheme was in force from 15.1.2001 till 31st January, 2001 (inclusive of both days) with an option for the Bank to close early/extend the date without assigning any reason.
The eligibility clause under 'SBI Voluntary Retirement Scheme' provided as follows:
"ELIGIBILITY:
The Scheme will be open to all permanent employees of the Bank, except those specifically mentioned as 'ineligible', who have put in 15 years of service or have completed 40 years of age as on 31st December 2000.
Age will be reckoned on the basis of the date of birth as entered in service record."
Since we are not concerned with the clause 'ineligible', therefore, we would not mention the clause which will make an officer 'ineligible' for seeking voluntary retirement.
The scheme also provided the benefits which occur to an officer who opts for voluntary retirement such as ex-gratia gratuity, provident fund etc. The Bank was given sole discretion as to the acceptance or the rejection of the request for retirement under the scheme depending upon the requirements of the Bank.
Clause 7. of the scheme reads as under:
"7.OTHER FEATURES:
The Bank intends to control the outflow according to its requirements. Towards this end, the Bank retains the discretion to limit the number of employees allowed to retire in each category of staff viz. officer/clerical-cash/subordinate, to be covered under SBIVRS. As such the Bank will have the sole discretion as to the acceptance or the rejection of the request for retirement under SBIVRS depending upon the requirements of the Bank. For the purpose of exercising discretion in this regard, category wise lists of eligible applicants would be prepared in descending order of their age and applications of employees coming in higher age groups above cut-off age would be accepted; the cut off age in each category will of course depend upon the acceptable number of employees who can be permitted to retire.
No voluntary retirement shall be deemed to have come into effect unless the decision of the Competent Authority has been communicated in writing."
Clause 8 (viii) provides that in case of disputes as to the interpretation of any of the terms and conditions of the Scheme, the decision of the Bank shall be final and binding on all the parties concerned.
Clause 8(ix) provides that the Bank reserves the right to modify, amend or cancel any or all of the aforesaid clauses and to give effect thereto from any dates it may deem fit."
The aforesaid scheme giving criteria of eligibility for seeking voluntary retirement only requires that a person should be permanent employee of the Bank except those who fall within the definition of 'ineligible' under the scheme itself, he should have put in 15 years of service or have completed 40 years of age as on 31.12.2000. In case any employee fulfills the eligibility conditions, he was entitled to seek voluntary retirement.
However, it appears that in pursuance of the power conferred under Clause 8 (ix) of the scheme, the Bank issued a circular on 2.1.2001 wherein it laid down that if an officer, who has not completed the mandatory rural or semi-urban assignment (either wholly or partly), submits an application for retirement under the Scheme, his request would be subject to the provisions contained in circular No. CDO/PM/CIR/25 dated 11.6.1999. Thus, in case an officer from this category applies for retirement under the SBIVRS, his promotion would stand withdrawn. Again a circular note was issued on 8.1.2001 clarifying the scheme of voluntary retirement dated 30.12.2000, wherein it was provided as under:
"If an officer, who has not completed the mandatory rural or semi-urban assignment (either wholly or partly) submits an application for retirement under SBIVRS, his request would be subject to the provisions contained in Staff Circular No. CDO/PM/1 of 1999 dated 7.8.99. Thus, in case of an officer from this category applying for retirement under SBIVRS before approving his case, his promotions would stand withdrawn."
This circular dated 8.1.2001 was issued by the State Bank of India, Personnel & HRD Dept., Local Head Office, Lucknow and contains the same provisions/conditions as were mentioned in the circular letter dated 2.1.2001.
The circular dated 11.6.1999, a copy of which is placed on record as Annexure C-5 to the counter affidavit in W.P.No. 657 (S/S) of 2001, speaks of the same conditions in Para 3(vii), which reads as under:
"3.(vii) if an officer opts for voluntary retirement/resignation, the Bank would not permit such retirement/resignation unless he/she either completes the mandatory R/SU assignment or makes a request in writing to withdraw his/her promotion(s) as he/she cannot complete R/SU assignment and be retired. In case the officer applies for retirement/resigns, without making a request in writing for withdrawal of promotion(s), the Bank may withdraw his/her promotion(s) based on the undertaking already given and thereafter permit the officer to retire/resign."
So far as the circular dated 7.8.1999, is concerned, the reference of the same has already been made above in the circular dated 8.1.2001.
A perusal of the aforesaid circulars would reveal that the requirement of an officer for undergoing rural/semi-urban posting for the given period has been held to be mandatory and the consequence of the same for those who have not undergone such posting for any reason of their own; viz. their promotions shall be withdrawn, if they opt for voluntary retirement.
The employees/officers were required to give an undertaking at the time of promotion for undergoing an rural/semi-urban posting for the required period, failing which they will forgo the promotions, if they do not go for such posting, for any reason attributable to them. A copy of the same given by P.K. Kalia has been brought on record as Annexure C-4 to the counter affidavit. The aforesaid undertaking reads as under:
"(1)...........
(2) I also undertake to forgo the promotion in the event of my failing to complete the required period of service at rural/semi-urban branch for reasons attributable to me."
The original scheme of voluntary retirement did not anywhere provide that at the time of moving of application for voluntary retirement or at the time of acceptance of the request for voluntary retirement, the officer should have completed two years rural or three years semi-urban posting, but it was a modification of the scheme by means of the subsequent circulars which, in fact, on the one hand requires the officer/employee to undergo the aforesaid posting, which was termed as mandatory posting, and at the same time protected the interests of those officers/employees who could not be given such postings for the reasons not attributable to them. In other words, if an employee/officer was always available and has not objected to the posting of rural/semi-urban branch and the Bank of its own has not given any such posting, then it cannot be said that his posting in the rural/semi-urban area could not be undergone because of any reason attributable to him and all such officers were given, due protection from withdrawal of promotions.
The withdrawal of promotion at the time of retirement, as given in para 3(1) of the Circular dated 7.8.1999, was dependent only on the fact, whether the officer himself was responsible for not having rural/semi-urban posting or not i.e. for any reason attributable to him, may it be a case of promotion or that of voluntary retirement. On both the occasions withdrawal of promotion was permissible only if the rural/semi-urban posting was not done by the officer for any reason attributable to him, but if it was not a case where the officer can be held responsible for not taking rural posting, there is no provision under the scheme or under the circulars for withdrawal of the promotions.
A glance of paragraphs of the circulars, quoted above, would clearly establish the fact that the following condition is necessary for withdrawal of promotion while opting for voluntary retirement, namely; if an officer, who opts for voluntary retirement has not completed the mandatory rural or semi-urban assignment (either wholly or partly) for the reasons attributable to him then in view of the undertaking given by him his promotion would stand withdrawn. What is the undertaking we have already dealt with. The undertaking itself clearly says that the petitioner would forgo promotion in the event of failing to complete the required period of service at rural/semi-urban branch for the reasons attributable to him.
It is not the case of the respondents-Bank that the rural posting either wholly or partly could not be completed because of any reason attributable to the petitioners. The only ground in defence taken in the impugned orders is that the promotions are being withdrawn in accordance with the undertaking given by them, as the petitioners have not completed the stipulated period of rural/semi-urban assignment. We fail to appreciate the aforesaid plea.
There is nothing on record to indicate nor it is the case pleaded by the Bank that the assignment orders of rural posting were given to the petitioners and they refused to join on their rural postings.
The Bank had the sole discretion whether to accept or reject the request for voluntary retirement under the Scheme, even if the officer has not completed two years rural/semi-urban service. The Bank still without withdrawing the promotions of the petitioners, could have allowed the voluntary retirement as they were not given rural posting and the petitioners never refused to go on such posting as per the undertaking given by them.
The promotions were withdrawn either on the same date when the voluntary retirement was accepted or after issuance of the letter of voluntary retirement i.e. much after the communication of acceptance of voluntary retirement i.e. at a later point of time.
The petitioners had not made any request for withdrawal of their promotions and by the conduct of the Bank they did not have any opportunity to withdraw their request of voluntary retirement on having come to know that their promotions have been withdrawn though there was a provision, permitting withdrawal of the request of voluntary retirement.
The scheme of voluntary retirement was to be read in the light of the eligibility condition contained therein and also in view of the circulars which were issued clarifying the scheme, making them part and partial of the scheme. No action could have been taken by the Bank, which did not fall within the four corners of the aforesaid scheme. The Bank while exercising the discretion of accepting the voluntary retirement of the petitioners ought to have accepted the request, but without withdrawing the promotions as the undertaking given by them permitted withdrawal of promotions only, if they had not completed the rural posting for any reason attributable to them and there was no other clause under the scheme under which the promotions already granted could have been withdrawn.
The next argument in defence of Sri N.K.Seth, learned Sr. Advocate is that since the rural posting of two years or three years semi-urban posting was mandatory for seeking promotion to the higher post and, admittedly, the said posting was not completed by the petitioners their promotions would be deemed to be adhoc and, therefore, on the date of voluntary retirement if they have been given all the benefits which are attributable to their substantiative post they cannot raise any grievance as they were not entitled to have the benefits of the post on which they were working on ad hoc basis.
The question, therefore, would be whether the promotions of the petitioners would be treated as ad hoc or they were regular promotions.
In the circular dated 23.6.1986, wherein it has been provided that from Junior Management Grade Scale-I (JMGS-I) to Middle Management Grade Scale-II (MMGS-II), two years service in rural branch was must and likewise from Middle Management Grade Scale-II to Middle Management Grade Scale-III the officer has to put in minimum three years in a rural and/or semi urban branch.
The Bank also issued a circular on 22.5.1987 prescribing the grades of officers in JMG Scale-I, minimum two years' service in a rural branch and MMG Scale-II minimum three years service in a rural and/or semi-urban branch. The stipulation regarding minimum stay at semi-urban branch was made effective from 1.8.1988.
The Corporate Office of the Bank also issued a circular on 16.9.1989. Paras 1(b) and 1(c) of the aforesaid circular required the officers to furnish to the Bank the letter of undertaking (as per the specimen enclosed) indicating their willingness to complete the required period of rural/semi-urban assignment and in the event of their failing to do so they would forgo the promotion. In case an officer refuses to give a letter of undertaking on the above lines, he would render himself ineligible for the promotion to MMGS II and MMGS III, as the case may be, and it has been reiterated that the aforesaid posting is mandatory for promotion.
Learned counsel for the Bank has placed reliance upon the judgment in State Bank of India & others Vs. Kashinath Kher and others, (1996) 8 Supreme Court Cases 762.
In State Bank of India (Supra), the Apex Court considered the policy of the Bank which granted promotions to the officers working in Middle Management Grade Scale-II (in short 'MMGS-II') to MMG Scale-III without completion of required rural/semi urban service. The aforesaid policy was challenged before the High Court. The High Court found that they are ineligible and such a clubbing of ineligible officers with eligible officers is violative of Article 14 and accordingly struck down the policy.
In appeal the Supreme Court found that for giving equal opportunity to those officers who could not be given rural posting i.e. line assignment because of which they remained ineligible for promotion, if the Bank had adopted a policy permitting promotions with the condition of completing two years required rural service, it was not violative of Article 14 of the Constitution of India nor was bad in law. The Supreme Court observed as under:
"12. it would thus be seen that it is not a case of ineligible persons made eligible, but a case of giving opportunities to those officers, who for no fault of theirs, were not made eligible to be considered and given opportunity to be considered for promotion and after consideration, on fulfilment of the service of line assignment and rural/semi-urban service for a minimum of two years were promoted to the MMGS-III. Thus, we hold that the policy adopted by the Board is not violative of Article 14 of the Constitution. But it must be remembered that in considering whether the candidate has completed the line of assignment or rural/semi-urban service for the required period, a clear demarcation be drawn between the officers who either due to volitional refusal and those on account of inaction or deliberate omission on the part of the controlling authority did not have an opportunity as the case may be, to get the required service qualifications. Therefore, an exercise requires to be done by the appellant to identify this grouping and consider all those candidates who have otherwise become eligible but did not get opportunity, for no fault of theirs, to secure the service qualifications to those who volunteered not to go for line assignment or rural or semi-urban service as the case may be, and then to consider according to the criteria prescribed under the rules or the circulars issued from time to time."
Under the circumstances, the Supreme Court took notice of the fact that for reason of non-availability of the posts or due to non-enforcement of the conditions, many of the officers have not had the benefit of working in the line assignment and in the rural service. Consequently, the question arose whether the rule requires to be adhered to or the policy requires to be changed. In that behalf the Board decided to relax the conditions for the rural posting as a one-time measure to give a chance to the officers to fulfill the conditions. Nonetheless, the conditions have not been fulfilled due to the diverse reasons which include mismanagement at circle levels as noted by the Board. Consequently, they have decided to arrange three lists. List A consists of officers who have put in two years' required service of line assignment. List B comprises officers who have not completed two years service but have done partly and List C consists of officers who have not had the required service at all. The officers who have not completed the rural or semi-urban service are not included in List B. but they are separately dealt with.
The Supreme Court while permitting promotions of the persons who have not completed the required rural service further observed that such promotions would be treated as ad hoc Thus, it was a case where the promotions were allowed by the Supreme Court despite the fact that the officers who did not undergo two years line assignment or rural or semi-urban posting, but this benefit was confined only to those officers who have not refused the rural assignment.
The promotions in the aforesaid case were to be made later on. These officers were required to complete the mandatory requirement of two years rural regular service and, therefore, the Supreme Court observed that such promotions would be treated as ad hoc till they stand regularized. There the promotions were to be made in future but the Supreme Court did not observe that the promotions already made, i.e. much before, would also be treated as ad hoc.
In the instant case, the promotions were made in the case of P.K.Kalia on 1.1.1992 in MMGS-II and Syed Ejaz Haider on 1.1.1992 in MMGS-II and U.C.Sanghi was promoted in MMGS-II in the year 1986 and in MMGS-III on 1.8.1988 and in SMMGS-IV on 1.11.1992. These promotions were given without any fetters nor were termed as ad hoc. To the contrary they were the regular promotions awarded after regular selection.
The petitioners could never know nor were made aware that their promotions were made on ad hoc basis and that they would become regular only if they undergo the rural posting.
Granting of promotions in the absence of rural service being completed on regular basis was the discretion of the Bank.
The Bank granted promotions in the cases of P.K.Kalia and Syed Ejaz Haider in the year 1992 and in the case of U.C.Sanghi in the years 1986 and 1988 and thereafter in 1992, but at no point of time it was said that they were ad hoc promotions. The undertaking was taken from them to the effect that they would undergo the rural posting and would not refuse it otherwise their promotions would be withdrawn. The undertaking, as already observed, shows the readiness and willingness of the petitioners to undergo the rural posting and if they refuse to go on rural posting or avoid rural posting, their promotions will be withdrawn. But there is nothing in the undertaking or in the scheme or even in the circulars, referred to above, which allow withdrawal of the promotions if the Bank itself did not post the petitioners to any rural branch, knowing fully well that they have not completed two years rural posting. Their promotions could also not be treated as ad hoc which were made long before nor they were treated ad hoc by the Bank at any point of time, but only at the time when the writ petitions were filed, a defence has been taken in defence of the impugned orders of withdrawal of the promotions.
For the reasons aforesaid, it stands concluded that the voluntary retirement scheme of the State Bank of India did not in itself introduce the requirement of two years rural posting or three years semi urban posting for seeking voluntary retirement for which a definite eligibility criteria was pronounced in the scheme. The aforesaid requirement was made applicable for promotions and also for voluntary retirement by means of various circulars which we have discussed above. The undertaking was to be given by the employees/officers of the Bank that they were willing and ready to undertake the rural posting, which posting they shall not refuse on their own volition and if they refuse or avoid rural posting then the promotions granted to them would stand withdrawn. It is this undertaking which was made the basis for withdrawal of the promotions.
The promotions have not been withdrawn, under the impugned order treating them to be adhoc. The orders, impugned, therefore can not be defended by giving additional reasons in the counter affidavit.
Needless to reiterate that the undertaking aforesaid does not permit the Bank to withdraw promotions when no fault can be attributed to the petitioners for not going on rural posting or semi urban posting, as required.
Lastly, Sri N.K. Seth submitted that the petitioners had applied under the SBI Voluntary Retirement Scheme when there was sufficient time with them to go on required rural posting before attaining the age of superannuation and since it was not a case of compulsory retirement and they knew at the time of opting for SBI Voluntary Retirement Scheme that they had not completed the rural or semi urban assignment, therefore, their promotions shall be withdrawn, as such the impugned orders are justified.
Reliance has been placed upon the judgment in C.D.Sampath and others Vs. State Bank of India and others, 2006 (2) SLJ 257 (Madras), (MANU/TN/0512/2005), wherein the Division Bench of the Madras High Court has held that it may be true that the petitioners never refused rural/semi urban assignment and that such assignment was never offered to the petitioner, but in any case, clause (g) of the circular dated 25.6.1999 makes rural service a mandatory requirement for voluntary retirement. The voluntary retirement scheme is a contractual scheme and the petitioner was under no compulsion to opt for it. Having opted for it, he is bound by the circulars dated 25.6.1999 and 4.1.2001.
There cannot be any quarrel about the legal proposition that there is a contractual scheme, the parties are bound by that and having opted for such a scheme the officer is also bound by the scheme as well as the circulars which are part and partial of the scheme.
However, with regard to the observations made above, it would be sufficient to mention here that in the instant case the Bank had accepted the voluntary retirement and, therefore, it is immaterial that the petitioners under what circumstances opted for the voluntary retirement scheme.
Apart from this, as already discussed in the earlier part of the judgment, the voluntary retirement scheme nowhere says that the Bank would have no authority to accept voluntary retirement of an Officer who has not undergone rural posting. It is the specific case of the respondent-Bank before us as placed by Sri N.K.Seth, learned counsel for the Bank that it was the discretion of the Bank either to accept or refuse the voluntary retirement considering that the petitioners have not completed rural posting, but withdrawal of promotions could not have been ordered, unless there was a case of violation of their undertaking. The petitioners were never issued order for rural posting, therefore, it was not a case of not honouring their undertaking.
For the reasons aforesaid, the impugned orders dated 28.3.2011, 31.3.2001 and 23.3.2001, withdrawing the promotions of the petitioners are hereby quashed. The petitioners shall be given all consequential benefits within a period of three months from the date a certified copy of this order is produced before the respondent-Bank.
The writ petitions are allowed. Costs easy.
24.1.2012 Arjun