- (1.) AGGRIEVED by the orders dated 31st August, 1999, Annexure-'vii' to the writ petition and 2nd September, 1999, Annexure-'ix' to the writ petition, whereby the petitioner has been denied promotion on the post of middle management Grade- II in Gorakhpur Regional Gramin Bank, Head Office, Sakh Anubhag, Mohaddipur, Gorakhpur, hereinafter referred to as 'bank', the petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the said orders and has also sought a writ of mandamus commanding the respondents to open the 'sealed cover' result adopted in the year 1997 and to consider his case for promotion in accordance therewith. The petitioner has also challenged the validity of Circular dated 28th March, 1998, Annexure-'viii' to the writ petition.
(2.) THE brief facts giving rise to the present dispute as stated in the writ petition are that the petitioner was appointed as an officer in the Bank on 21st December, 1981 and was confirmed on the said post in the year 1983. THE aforesaid Bank was established under Section 3 of the Regional Rural Bank Act, 1976 (Act No. 21 of 1976), hereinafter referred to as 'the Act'. In exercise of power under Section 30 of the Act, regulations have been framed governing conditions of service of staffs of the Bank titled as "gorakhpur Kshetriya Gramin Bank (Staff) Service Regulation, 1980", (hereinafter referred to as '1980 Regulation ). In the year 1991 when the petitioner was posted as Branch Manager at Gajpur Branch, District Gorakhpur, a charge- sheet dated 18th December, 1991 was served upon him alongwith forwarding letter dated 7th January, 1992. THE petitioner submitted his reply to the aforesaid charge- sheet. THEreafter disciplinary enquiry was set up by the Bank. THE enquiry officer submitted his report holding petitioner guilty of charge No. 3 while exonerating him in respect of charges No. 1, 2 and 4. THE disciplinary authority agreed with the report of enquiry officer in respect to its findings on charges No. 3 and 4 but disagreed with the findings of the enquiry officer in respect of charges No. 1 and 2 and recording his disagreement issued show-cause notice dated 31st March, 1998 to the petitioner giving him an opportunity to submit his reply. THE petitioner submitted his reply on 4th May, 1998 and thereafter disciplinary authority i. e. Chairman of the Bank vide order dated 29th August, 1998 imposed punishment of stoppage of annual increment for three years and 50 per cent of recovery of the sanctioned loan amount in case Bank failed to recover the same from the person concerned. Aggrieved by order dated 29th August, 1998, the petitioner filed appeal under Regulation 31 of 1980 Regulations, whereupon the appellate authority i. e. Board of Directors vide order dated 16th December, 1998 modified order of punishment and the amount of recovery was reduced from 50 per cent to Rs 5,000/ -. During the period when the aforesaid enquiry was pending, the petitioner was considered for promotion in the year 1997 for middle management Grade-II by the departmental selection committee, which kept its recommendations regarding petitioner in 'sealed cover' in accordance with Rules of the Bank. After finalisation of the proceeding, the petitioner requested the authorities to open the 'sealed cover', whereupon by letter dated 31st August, 1999 he has been informed that the recommendation of the selection committee stands infructuous in the light of Bank Circular dated 28th March, 1998, since final order of punishment was passed against the petitioner. Again a departmental promotion committee held in September, 1999. It is submitted that the petitioner has been denied consideration for promotion in 1999 in view of conditions contained in Circular dated 28th March, 1998 as communicated by the Bank's letter dated 2nd September, 1999. Sri P. S. Baghel, learned Counsel for the petitioner assails Bank's Circular dated 28th March, 1998 and order dated 31st March, 1998 contended that Circular dated 28th March, 1998 cannot be allowed to operate retrospectively and therefore, his 'sealed cover' result of 1997 cannot be dealt with by the aforesaid Circular. He contended that once a person has been punished by imposing certain punishment provided under Regulation 30 of 1980 Regulation, he cannot be made to suffer twice in the matter of promotion on the higher post on the basis of the aforesaid punishment since it amounts to double jeopardy, which is illegal. He further contended that in any case the Circular in question is arbitrary and discriminatory and therefore, cannot be allowed to operate against the interest of the petitioner. In regard to order dated 2nd September, 1999, whereby he has been denied right for consideration promotion in the selection held in September, 1999, he contended that the punishment imposed upon the staff of the Bank cannot be treated to be an ineligibility for promotion since the eligibility for promotion is prescribed under Regional Rural Bank (Appointment and Promotion of Officers and Other Employees) Rules, 1988 (hereinafter referred to as '1988 Rules' ). The eligibility for promotion is prescribed in second Schedule item No. 7 of 1988 Rules, which is being supplemented by certain conditions provided in the said executive order. Therefore Circular dated 28th March, 1998 in so far as it makes the penalty imposed upon the petitioner as an ineligibility is ultra virus of the said Rule, since the provisions of a Statute cannot be altered and supplemented by executive order. Sri Yashwant Verma, learned Counsel for the respondents on the other hand contended that in the matter of 'sealed cover' procedure, if the disciplinary proceedings has culminated in punishment, it is always just and valid for the employer to deny promotion to the concern employee considering punishment imposed upon him. It cannot be said to be double jeopardy as has been contended by learned Counsel for the petitioner. He further contended that since stoppage of increment for three years is a punishment imposed upon the petitioner, during the period he would be undergoing said punishment, he could not have been considered to be eligible for promotion, therefore, the petitioner has rightly been held to be ineligible and the Circular dated 28th March, 1998 is only clarificatory in nature, cannot be said to be in any manner inconsistent or ultra virus of the Rules as has been contended by the petitioner. He has also placed reliance on the Apex Court judgment in Union of India & Ors. v. K. V. Jankiraman & Ors. , 1991 (4) SCC 109.
(3.) WE have heard learned Counsel for the parties and perused records. The first question is whether the petitioner could have been denied right to ask the employer to open 'sealed cover' pursuant to the Circular dated 28th March, 1998. The right of the petitioner to insist upon the employer to consider him for promotion and to open 'sealed cover' will materialise only after finalisation of the disciplinary proceeding. Prior to the issuance of Circular dated 28th March, 1998, it appears that the existing provision of the Bank did not allow even the application of 'sealed cover' procedure to the staff of the Bank against whom the disciplinary enquiry was pending. In this regard, a decision was taken by the Bank in the Board of Director's meeting dated 28th April, 1995 wherein it resolved to adopt 'sealed cover' procedure, which was followed in the year 1997 and the petitioner was considered for promotion to the post of middle management Grade-II since a departmental enquiry was pending against him at that time. It is not disputed that on the date when the Circular dated 28th March, 1998 was issued, enquiry was still pending. The final order of punishment was issued on 31st August, 1999. The Circular dated 28th March, 1998 provides for the consequences which have to be observed when a departmental enquiry has culminated in a final order of punishment or exoneration, as the case may be. Therefore, it cannot be said to be a Circular having been acted upon retrospectively by the respondents. In the case of petitioner the departmental enquiry was pending when the Circular was issued. After final order dated 31st August, 1999, the same has been dealt with in accordance with the provision as was existing at that time. Therefore we are of the view that the Circular dated 28th March, 1998 has rightly been applied by the Bank in the case of the petitioner.;