1. Challenge to promotion policy of bank officers on ground of violation of relevant rules. (Para 1 , 2 )
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2001 Supreme(SC) 1276
SUPREME COURT OF INDIA
Doraiswamy Raju : S.R.Babu
Mohan Lal Aggrawal
Versus
Bhubaneswari Prasad Mishra And Another
Case No. : 145 of 1998
Date of Decision : 9/13/01
Important Points
Participation in a selection process does not constitute acquiescence or bar a legal challenge to a promotion policy if the policy penalizes non-participation with permanent debarment and there was insufficient time to approach the court prior to the process.
Subject
Service Law - Promotion and Selection
Act Referred
Headnote
(A) Service Law - Promotion Policy - Selection Process - Participation in a selection process - Whether an employee who participates in a selection process, despite objections raised by a representative association, is precluded from challenging the validity of the promotion policy on the grounds of acquiescence - Where a policy stipulates that any officer who submits a conditional refusal or absents himself from the examination and interview shall be permanently debarred from promotion and officiating chances, such a condition removes the choice of the employee, making participation necessary to preserve future prospects. In such circumstances, participation does not constitute a waiver of the right to challenge the policy. (Paras 3, 6)
(B) Writ Jurisdiction - Laches and Acquiescence - Principles of estoppel and acquiescence are not applicable where the time gap between the declaration of the policy, the protest by the association, and the actual selection process is too short to allow the aggrieved party sufficient time to approach the court. (Para 6)
Facts of the case:
A bank formulated a promotion policy for the cadre of area managers and senior managers based on written tests, seniority, performance, and interviews. The policy included a clause that anyone refusing to participate or absenting themselves would be permanently barred from promotion. An officers association protested the policy as being inconsistent with relevant rules. One officer participated in the process but was not selected and subsequently challenged the policy and the promotions of others in a writ petition. The High Court allowed the petition.
Findings of Court:
The High Court was justified in deciding the matter on its merits. The interests of those already promoted were adequately protected by the directions given by the High Court.
Issues: Whether the respondent was precluded from challenging the promotion policy and the consequential promotions due to his participation in the selection process, thereby amounting to acquiescence or laches.
Ratio Decidendi: The court ruled that participation in a selection process does not bar a challenge to the policy if the policy imposes a severe penalty (such as permanent debarment) for non-participation and if there was a prior protest by a representative body, especially when the timeframe was too short to seek judicial relief before the process commenced.
Result: Appeal dismissed.
(B) Writ Jurisdiction - Laches and Acquiescence - Principles of estoppel and acquiescence are not applicable where the time gap between the declaration of the policy, the protest by the association, and the actual selection process is too short to allow the aggrieved party sufficient time to approach the court. (Para 6)
Facts of the case:
A bank formulated a promotion policy for the cadre of area managers and senior managers based on written tests, seniority, performance, and interviews. The policy included a clause that anyone refusing to participate or absenting themselves would be permanently barred from promotion. An officers association protested the policy as being inconsistent with relevant rules. One officer participated in the process but was not selected and subsequently challenged the policy and the promotions of others in a writ petition. The High Court allowed the petition.
Findings of Court:
The High Court was justified in deciding the matter on its merits. The interests of those already promoted were adequately protected by the directions given by the High Court.
Issues: Whether the respondent was precluded from challenging the promotion policy and the consequential promotions due to his participation in the selection process, thereby amounting to acquiescence or laches.
Ratio Decidendi: The court ruled that participation in a selection process does not bar a challenge to the policy if the policy imposes a severe penalty (such as permanent debarment) for non-participation and if there was a prior protest by a representative body, especially when the timeframe was too short to seek judicial relief before the process commenced.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Appellants argued lack of choice to participate due to policy imposed debarment; respondent relied on acquiescence and laches. (Para 5 , 6 )
3. Protest raised before participation and coercive policy left no real choice, so acquiescence not applicable. (Para 6 , 7 )
4. Participation in a selection process under protest or coercion does not waive right to challenge the policy. (Para 6 , 7 )
5. Appeal dismissed; High Court decision upheld with protection of interests of already promoted officers. (Para 8 )
6. Does participating in a selection process under protest bar a challenge to the promotion policy?
No, participation under protest or coercion to avoid permanent debarment does not constitute acquiescence. (Para 6 , 7 )
7. Can a party be held to have acquiesced when there was no real choice but to participate?
No, if the policy imposes a penalty of permanent debarment for non-participation, there is no real choice. (Para 6 )
8. What is the effect of a prior objection by an officers' association on a challenge to a promotion policy?
A prior objection by an officers' association can negate a claim of acquiescence by individual participants. (Para 2 , 6 )
JUDGMENT
S.RAJENDRA BABU, J.
(1) THE appellants before us and the first- respondent are officers of Bolangir Anchalika Gramya Bank (for short the bank). A promotion policy was formulated by the bank on 25.10.1991 by which the promotion to the cadre of area managers/senior managers would be pursuant to a selection as provided in clause 3 thereof on the basis of a written test, seniority, performance and/or service record, CAIIB examination and interview.
(2) THE officers association of the bank submitted a representation to the chairman protesting against the issuance of the circular on the promotion policy on the ground that it is violative of the provisions contained in the relevant rules.
(3) THE promotion policy indicated that even an officer who submits (i) a conditional refusal and/or (ii) absents himself from written examination and/or an interview without prior intimation or valid proof, shall be permanently debarred from the promotion to the higher grades and officiating chances too and suitable noting would be made in his service record also. The first-respondent participated in the tests and interview conducted by the bank and had not been selected thereof while the appellants before us had been selected. The first-respondent challenged the promotion policy and the consequential action taken by the bank in promoting the appellants and sought for consideration of his case for promotion.
(4) THE High Court allowed the writ petition after examining the relevant rules and the promotion policy. That decision is consistent with the decision of this Court in B.V. Sivaiah & Ors. K. Addanki Babu & Ors. [JT 1998 (5) SC 96]. This decision was rendered after considering the effect of the decision in Jagathigowda. C.N. & Ors. v. Chairman, Cauvery Gramina Bank & Ors. [JT1996(10)SC175].
(5) UNDAUNTED by this legal position, Shri G.L. Sanghi, learned senior advocate and Shri Janaranjan Das, learned counsel very strenuously contended that the appellants had been promoted by an order made on 21.12.1991 w.e.f. 1986; that the respondent having participated in the selection process, cannot now turn round to challenge the same in a writ petition; that the High Court ought not to have considered any of the contentions raised on behalf of the first-respondent but straightaway dismissed his writ petition on the ground of laches and they relied upon the decisions of this Court in Dr. G. Sarana v. University of Lucknow & Ors. [1976 (3) SCC 585], Manak Lal v. Dr. Prem Chand [1957 SCR 575], Utkal University v. Dr. Nrusingha Charan Sarangi & Ors. [JT 1999 (1) SC 101], U.P. Lama & Ors. v. State of Sikkim & Ors. [JT 1996 (10) SC 757 = 1997 (1) SCC 111].
(6) IN all these decisions what is pointed out is that the concerned parties against whom the decisions were rendered by dismissing the writ petition on ground of acquiescence having participated either in the selection process or in the proceedings conducted by a tribunal without any demur. However, in the present case, as pointed out earlier the officers association did raise an objection as to the manner of promotion policy by stating that the same is not consistent with the relevant rules, which contention has been upheld subsequently by this Court in the decision in Sivaiahs case (supra). Further, when the conditions of policy were such that if he did not participate in the selection process, he forfeits his right to promotion permanently, there is hardly any choice for him except to participate in the selection process. However, it is contended that he need not have participated in the selection process but taken the matter to the court. As the time gap between declaration of the policy, the protest made by the officers association of the bank and the selection process being too short, there was hardly any time left to him to approach even the High Court.
(7) IN those circumstances, we think the principles stated in any of these decisions
