As per case facts, the Petitioner, a Chief Manager, challenged his non-consideration for promotion to SMGS-V for 2016-17. The Bank's rules required calling three times the vacancies, but for 33 ...
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
214
CWP-12435-2016 (O&M)
Date of decision: 04.08.2025
Yog Raj Garg ...Petitioner
VERSUS
State Bank of Patiala and others ...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. Raman Sharma, Advocate for the petitioner(s).
Mr. Vikas Chatrath, Advocate for respondent(s) No.1 and 2.
*****
VINOD S. BHARDWAJ, J. (Oral)
1. Aggrieved by the non-consideration of his candidature for
promotion to the post of Senior Management Grade Scale-V (SMGS-V), the
petitioner has approached this Court.
2. The grievance, succinctly, is that the petitioner, who was
serving as Chief Manager with the respondent-Bank, asserts that under the
applicable statutory rules, the respondents are mandated to call for
promotion eligible candidates equivalent to three times the number of
available posts. It is contended that for the promotion exercise conducted for
the year 2016-17, even though 33 posts were filled up by way of promotion,
the respondents called only 80 candidates for consideration, instead of 99,
thereby excluding the petitioner. He avers that being eligible he was entitled
to be considered for promotion and by restricting the zone of consideration,
he has been unlawfully deprived of his statutory right.
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3. It is contended that even though the respondents’ averment in
their written statement is that only 26 vacancies existed and against which
80 candidates were called for interview, being more than three times the
number of posts but on account of bracketed candidates, the respondents
acknowledge elsewhere in the written statement that 33 officers were
eventually promoted to the post of SMGS-V. The petitioner submits that,
since the exact number of vacancies was not specified at the time of
convening the Departmental Promotion Committee (DPC), the claim by the
respondents that the promotion process was initiated only to fill 26 posts is
contradicted by the subsequent promotion orders issued by the respondents.
Further, it is submitted, that although the petitioner has since superannuated,
this fact does not by itself adversely affect his statutory right to be
considered for promotion, as the convening of a Departmental Promotion
Committee, post-superannuation, is permissible in such circumstances. In
support of the said argument, reliance is placed on the judgment of the
Madhya Pradesh High Court (Jabalpur Bench) in ‘Ravinder Kumar
Rajnegi v. The State of Madhya Pradesh and others’, Writ Petition No.
13018 of 2010, decided on 17.08.2023 (Law Finder Doc Id #2510039). The
relevant extract of thereof reads thus:-
“10. I am unable to persuade myself with the line of
stand taken by the State for the simple reason that if
respondents are talking about punishments inflicted on the
petitioner, they must satisfy that the said orders of 'Ninda' are
indeed statutory punishments under the Regulations. Learned
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Govt. Advocate could not point out any provision from the
regulation which includes 'Ninda' or 'censure' as a punishment.
It is trite that only a punishment prescribed in the rule can be
treated to be a 'punishment' under the law. In (2012) 5 SCC 242
(
Vijay Singh v. State of U.P.) it was held that-
"20. Unfortunately, a too trivial matter had been
dragged disproportionately which has caused so much
problem to the appellant. There is nothing on record to
show as to whether the alleged delinquency would fall
within the ambit of misconduct for which disciplinary
proceedings could be initiated. It is settled legal
proposition that (sic it cannot be left to) the vagaries of
the employer to say ex post facto that some acts of
omission or commission nowhere found to be enumerated
in the relevant rules is nonetheless a misconduct.
[See Glaxo Laboratories (I) Ltd. v. Presiding
Officer [(1984) 1 SCC 1 : 1984 SCC (L&S) 42 : AIR
1984 SC 505] and A.L. Kalra v. Project and Equipment
Corpn. of India Ltd. [(1984) 3 SCC 316 : 1984 SCC
(L&S) 497 : AIR 1984 SC 1361] ]
21. Undoubtedly, in a civilised society governed by the
Rule of Law, the punishment not prescribed under the
statutory rules cannot be imposed. Principle enshrined in
criminal jurisprudence to this effect is prescribed in the
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legal maxim nulla poena sine lege which means that a
person should not be made to suffer penalty except for a
clear breach of existing law."
The necessary corollary of the ratio of this judgment is that
only such punishments can deprive the petitioner from right of
consideration which are statutorily prescribed.
11. In this view of the matter, there was no valid
reason to deprive the petitioner from the right of consideration
for promotion. Right of consideration is not only a statutory
right it is a fundamental right under the Constitution flowing
from the Articles 14 and 16 of the Constitution (See : (2022) 12
SCC 579 Ajay Kumar Shukla and Ors. Vs. Arvind Rai and
Ors.). The said right of petitioner is taken away for a reason
which cannot sustain judicial scrutiny.
12. Resultantly, the respondents are directed to
consider and permit the petitioner to participate in the selection
process and if he is selected promote him from appropriate date
as if petitioner had participated in the examination held on
28.08.2010. In the event petitioner is promoted, he shall get all
the consequential benefits except the arrears of pay for the
intervening period on the promotional post.”
(emphasis supplied)
4. A further corroboration of the aforesaid claim is sought from
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the judgment of the Himachal Pradesh High Court in the matter of
‘Bichittar Singh Vs. State of Himachal Pradesh and others’ in CWP(T)
No.12586 of 2008, decided on 29.04.2011. The relevant extract thereof
reads thus:-
“6. It is by now fairly settled that the right for
consideration for promotion is a fundamental right. The
incumbent is legally entitled to assert such right even in an
eventuality of his retiring from service in the meanwhile. To this
effect is the law laid down by a Division Bench of Hon'ble
Punjab and Haryana High Court in Chaman Lal Lakhanpal v.
Union Public Service Commission and others, 1999 (1) SLR
670, vide paras 7, 9, 10 and 11, which read as under-
7. The right to equality of opportunity in matters of
promotion is guaranteed under Article 16 of the
Constitution. This cannot be stifled by an arbitrary
failure to perform the duty imposed by statutory
regulations. By merely choosing to avoid the meeting, a
citizen cannot be denied the right to be considered.
9. We are unable to accept this contention. The
respondent cannot be permitted to take advantage of its
own wrong. It is the Commission's own case that the
committee could not meeting during the year 1994-95,
1995-96 and 1996-97 on account of the interim order of
stay granted by the Tribunal in S.P. Gupta's case. 'After
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the stay was vacated on December 3, 1996, the
Commission took no steps for the meeting of the
committee immediately. If it had performed its duty and
nominated a member for the committee as constituted
under the regulations, the petitioner's rights as
guaranteed to him under the rules would not have been
violated. By merely failing to nominate a member and not
allowing the committee to meet, the Commission can't be
permitted to defeat the rights of the petitioner.
10. It was then urged that the petitioner has since
retired from service. Even this cannot be a ground for
refusing to consider his claim. The right to be considered
had accrued in the year 1994-95. The respondents had
failed to consider his claim. They had not discharged
their duty as enjoined upon them by law. The wrong done
to the petitioner can only be remedied by one method viz.
directing the respondents to do the needful on the
hypothesis that he was in service at the relevant time. If
the petitioner is found suitable for inclusion in the select
list and if his turn for appointment comes against an
available post in the promotion quota, he will be deemed
to have been promoted with effect from the due date.
Consequential reliefs shall ensure in accordance with the
rules.
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11. In view of the above, we allow the writ petition.
The order of the Tribunal is set aside. It is directed that
the petitioner's claim shall be considered with effect from
the due date for each of the years. The right shall be
considered in respect of the vacancies which have
occurred year-wise viz. 1994-95, 1995-96 and so on. The
needful shall be done within three months from the date
of receipt of copy of this order. The petitioner is also
entitled to his costs which are assessed at Rs. 5000/-,
Ordered accordingly."
7. In view of the above, the petition is allowed with a
direction to respondents No. 1 and 2/competent authority to
consider the case of the petitioner for promotion to the post of
Chief Pharmacist, if otherwise eligible, from the post became
available in the first instance before retirement of the
petitioner, by holding a review DPC within three months from
the date of production of copy of this judgment by the
petitioner. Needless to say that consequential benefits, if any,
would ensue the outcome of the proceedings of the DPC.”
(emphasis supplied)
5. Counsel for the respondent(s) on the other hand contends that
the petitioner has already superannuated and that the persons, who were
promoted in the concluded process, had already assumed charges and have
served for nearly 9 years and that a concluded promotion process be not
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interfered with. He places reliance on the Constitution Bench’s judgment in
the matter of ‘Sivanandan C.T. and others Vs. High Court of Kerala and
others’ reported as 2023 INSC 709, paragraph No. No.55(vi) thereof reads
thus:-
“55. The following are our conclusions in view of the above
discussions:
(i) The principles of good administration require that the
decisions of public authorities must withstand the test of
consistency, transparency, and predictability to avoid
being termed as arbitrary and violative of Article 14:
(ii) An individual who claims a benefit or entitlement based
on the doctrine of substantive legitimate expectation has
to establish the following: (1) the legitimacy of the
expectation, and that (ii) the denial of the legitimate
expectation led to a violation of Article 14:
(iii) A public authority must objectively demonstrate by
placing relevant material before the court that its
decision was in the public interest to frustrate a claim of
legitimate expectation:
(iv) The decision of the High Court of Kerala to apply a
minimum cut-off to the viva voce examination is contrary
to Rule 2(c)(iii) of the 1961 Rules.
(v) The High Court's decision to apply the minimum cut-off
marks for the viva voce frustrates the substantive
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legitimate expectation of the petitioners. The decision is
arbitrary and violative of Article 14.
(vi) In terms of relief, we hold that it would be contrary to
the public interest to direct the induction of the
petitioners into the Higher Judicial Service after the
lapse of more than six years. Candidates who have been
selected nearly six years ago cannot be unseated. They
were all qualified and have been serving the district
judiciary of the state. Unseating them at this stage
would be contrary to public interest. To induct the
petitioners would be to bring in new candidates in
preference to those who are holding judicial office for a
length of time. To deprive the state and its citizens of
the benefit of these experienced judicial officers at a
senior position would not be in public interest.”
(emphasis supplied)
6. Reliance is also placed on the judgment of the Hon’ble
Supreme Court in the matter of ‘Govt. of West Bengal & Ors. Vs. Dr. Amal
Satpathi & Ors.’ reported as 2024 INSC 906, paragraphs No.20, 22 and 23
reads thus:-
“20. In the instant case, it is evident that while
respondent No. 1 was recommended for promotion before his
retirement, he could not assume the duties of the Chief
Scientific Officer. Rule 54(1)(a) of the West Bengal Service
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Rules, clearly stipulates that an employee must assume the
responsibilities of a higher post to draw the corresponding pay,
thus, preventing posthumous or retrospective promotions in the
absence of an enabling provision.
21. While we recognize respondent No.1’s right to be
considered for promotion, which is a fundamental right under
Articles 14 and 16(1) of the Constitution of India, he does not
hold an absolute right to the promotion itself. The legal
precedents discussed above establish that promotion only
becomes effective upon the assumption of duties on the
promotional post and not on the date of occurrence of the
vacancy or the date of recommendation. Considering that
respondent No. 1 superannuated before his promotion was
effectuated, he is not entitled to retrospective financial benefits
associated to the promotional post of Chief Scientific Officer,
as he did not serve in that capacity.
22. As a result of the above discussion, the judgment
dated 1st February, 2023 passed by the High Court of Calcutta
and the judgment dated 26th June, 2019 passed by the Tribunal
are unsustainable in the eyes of law and are hereby reversed
and set aside.
23. The appeal is allowed accordingly. No order as to
costs.
24. Pending application(s), if any, shall stand disposed
of.”
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7. He submits that on 19.05.2016 the names of 80 candidates were
short listed whereas the writ petition has been filed on 08.06.2016 while the
promotions had been effected on 31.05.2016.
8. I have heard the learned counsel appearing on behalf of the
respective parties and have gone through the documents appended with the
instant petition with their able assistance.
9. Except for the submissions, the respondent bank has failed to
place on record any document to substantiate the assertion that the
promotion process was confined to only 26 posts. Moreover, despite a
specific query as to how and under when circumstances 33 posts got filled
up, counsel could not offer any satisfactory explanation. The presumption
that would thus flow is that the promotional process was to be actually
undertaken for 33 posts only. A manipulation in the vacancies to keep
people away from consideration cannot find favour in a Court of law. The
defence of the respondents as regards the available posts being 26 thus
deserves to be rejected.
10. The respondents having promoted 33 officers to the post of
SMGS-V for the year 2016-17, as per the applicable rules, officials three
times the total number of vacancies were required to be called for
consideration prior to the issuance of final promotion orders. Furthermore, it
is also admitted that the respondents shortlisted only 80 officials and the
name of the petitioner was not included therein, which would be there if
correct number of people were called for the process.
11.
In the above undisputed factual matrix, it stands conclusively
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established that the respondent-Bank had to actually initiate the promotion
process for 33 posts of SMGS-V and the petitioner would have fallen within
the zone of consideration. The justification offered, that the additional
appointments were made by including a bracketed candidate and six persons
on deputation, cannot be accepted as a valid or legally sound explanation.
Notwithstanding that an individual may be on deputation from another
department, they would not be deemed as promoted against the available
vacancies. There is thus a failure on the part of the respondents to fully
disclose the facts concerning the actual number of vacancies available for
consideration in the year 2016-17. The promotion of 33 candidates,
therefore, lends support to the petitioner’s contention that 33 posts were
indeed available for promotion during the relevant period.
12. The respondents have further attempted to justify their actions
by stating that the petitioner was considered for promotion in the year 2015-
16 but failed to attain the requisite benchmark for elevation. However, the
said explanation carries no weight in relation to the vacant posts available
for the next financial year. There is nothing on record to indicate or
establish that a candidate who has been considered for promotion in an
earlier year(s) and has not succeeded in the select list would be barred from
consideration in the following years for vacancies arising in the same cadre.
The petitioner’s right to be considered for the available posts in the cadre for
the year 2016-17 stands unimpeached.
13. Now, adverting to the reliance placed by the respondents on the
judgment of the Constitutional Bench in the matter of Sivanandan C.T. and
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others (supra), it is observed that paragraph 55(vi) of the said judgment
merely lays down a rule of caution against interfering with selections that
have subsisted over a considerable period of time. However, the principles
enunciated therein are inapplicable to the facts of the present case, as the
said decision pertained to direct recruitment, where no statutory right to
appointment to a post exists. In contrast, the present matter concerns
appointment by way of promotion, wherein a legitimate right is vested in the
candidate to be considered for further promotion. Thus, the reliance placed
on Sivanandan C.T. is misplaced and does not advance the respondents’
case.
14. The reliance placed by the learned counsel on the judgment of
the Hon’ble Supreme Court in Government of West Bengal & Ors. (supra) is
misconceived. The facts of that case disclose that the respondent-employee
therein had been recommended for promotion but, due to administrative
exigencies, was not actually promoted to the post and subsequently
superannuated. The financial relief claimed by the petitioner in that case was
denied on the ground that he had not served in the promotional post and,
therefore, was not entitled to the benefits thereof. The facts of the present
case are clearly distinguishable. The position in law needs no reiteration that
mere recommendation for promotion does not vest any obligation upon the
appointing authority to effect such promotion. The appointing authority
retains the discretion to accept or reject the recommendations of the
recommending authority.
15. The right to claim promotion and the attendant financial
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benefits accrue only when the recommendations of the selection committee
are accepted and acted upon, and similarly placed candidates have been
actually promoted. Under such circumstances, the right of a person who has
been actually overlooked or denied such benefit becomes crystallized. In the
present case, the respondents initiated the promotion process for the year
2016-17. The recommendations made by the Departmental Promotional
Committee were accepted and promotions of 33 candidates were effected. In
such a scenario, the respondents, by their own act and conduct, have
deprived the petitioner of his statutory right of consideration for which they
cannot be permitted to take benefit and contend that dehors an illegality
committed by them, yet it must be validated by a Court of law by efflux of
time.
16.
The facts of the present case do not disclose any inordinate
delay on the part of the petitioner in approaching this Court. The names of
the shortlisted candidates were finalized only on 19.05.2016 and the results
were declared on 31.05.2016. The contention of the respondents that the
petitioner approached this Court belatedly on 18.06.2016 i.e., after the
selection process had concluded and promotions had been effected for
seeking dismissal of the writ petition, is untenable. Even as per the case of
the respondents, the promotion process was initiated only against 26
vacancies. In such circumstances, the short-listing of 80 candidates as on
19.05.2016 did not confer any actionable right on the petitioner since only
these 80 candidates fell within the threefold zone of consideration. The
grievance relating to denial of the right to be considered arose only after the
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results were declared on 31.05.2016 and when the respondents made
promotion of 33 candidates.
17.
Accordingly the petitioner’s approach to this Court, after
declaration of the results, cannot be deemed delayed, as there was no reason
for him to anticipate that the respondents would exceed the number of posts
originally intended to be filled by promotion. It appears that the respondents,
by withholding the actual number of vacancies to be filled by promotion,
deprived candidates of a fair opportunity of consideration and leaving them
uncertain about their position. The judgments of the Madhya Pradesh High
Court (Jabalpur Bench) in Ravinder Kumar Rajnegi and the Himachal
Pradesh High Court in Bichittar Singh (supra) are apposite and applicable
to the facts of the present case. The petitioner is therefore held entitled to be
considered for promotion notwithstanding his superannuation during the
pendency of this writ petition.
18. The legal position requires no reiteration that an order of the
Court should not prejudice the rights of any party. It is also not an absolute
principle that after superannuation, a person is precluded from asserting or
enforcing a right that had accrued in his favor at the time of approaching the
Court. The respondents’ plea for dismissal of the instant writ petition on the
ground of the petitioner’s superannuation is accordingly rejected. However,
at this stage, the Court is persuaded to accept the respondents’ submission
that the result finally published on 31.05.2016 should not be disturbed as the
persons promoted have assumed charge and served against the post and 15
officers out of the total 33 have superannuated in the meantime, and the
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remaining 18 officers likely to retire in the near future.
19. In view of the foregoing, the instant writ petition is allowed.
The respondent-Bank is directed to consider the case of the petitioner for
promotion to the post of SMGS-V for the year 2016-17 deeming him to be
in service and evaluating his performance, as per the criteria applied to other
candidates in the same promotion process.
20. In the event of the petitioner found eligible and entitled for
promotion, having higher merit than the persons recommended by the
respondents in the said promotion process, the petitioner shall be given all
notional benefits of promotion w.e.f. the date when such benefits were
extended to the respondents who were appointed vide order dated
31.05.2016 and upto the date of his superannuation. The respondents are
hereby directed to convene a Departmental Promotional Committee within a
period of two months from the receipt of a certified copy of this order. The
notional benefits would be calculated within a period of two months
thereafter. The admissible financial benefits, including pensionary and
Death-cum-Retirement Gratuity (DCRG) benefits, shall be revised and
released in favour of the petitioner within the subsequent period of three
months, along with interest @6% per annum from the date of institution of
the present writ petition until the actual disbursement.
21. Allowed in above terms.
(VINOD S. BHARDWAJ)
04.08.2025 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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