K.M. MISHRAversusCENTRAL BANK OF INDIA & ORS.

                         [2008] 13 S.C.R. 534
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A                           K.M. MISHRA                                        l-

                                  II.
                CENTRAL BANK OF INDIA & ORS.
                 (Civil Appeal No. 5683 of 2008)

B
                      SEPTEMBER 16, 2008
        [TARUN CHATTERJEE AND AFTAB ALAM, JJ.]
                                                                      -\   .
        Service Law - Promotion - To Senior Management
  Grade Scale IV - Of Bank officer in preference to the other, on
c the basis of better Performance Rating for two out of three years
  - Promotion challenged on the ground that the promoted of-
  ficer did not fulfil education qualification and that performance
  appraisal of the officer challenging the promotion, was in
  breach of the guidelines - Held: the promotion was given
  rightly - Challenge to educational qualification is a non-issue
D
  as the same was relevant at the stage of entry level and not
                                                                      t"'
  for promotion in question - In the facts of the case, challenge
  regarding performance appraisal is not sustainable.
         Appellant as well as respondent No.5 were consid-
E ered for promotion from Middle Management Grade Scale
  Ill to Senior Management Grade Scale IV. Respondent No.
  5 was promoted in preference to the appellant as Perfor-
  mance Appraisal Ratings of the appellant for two years
  (years 1995-96 and 1996-97) out of the three relevant years
F were lower than respondent No. 5.
         Appellant challenged the order on the grounds
  interalia that respondent No. 5 did not fulfill the require-
  ment of educational qualifications; and that performance
  appraisal of the appellant for the two years i.e. 1995-96
G and 1996-97, was in breach of the guidelines provided
  under the Performance Appraisal System of Officers. High
  Court dismissed the writ petition. Hence the present ap-
  peal.                                                                r- ,
H                                534
                    K.M. MISHRA v. CENTRAL BANK OF             535
 ~-.,                         lr.JDIA & ORS.

            Dismissing the appeal, the Court                         A
             HELD: 1. The matter of educational qualification of
        respondent No.5 is a non-issue insofar as hi$ promotion
        to Senior Management Grade (SMG) Scale IV is con-
        cerned. The educational qualifications referred to by the
~· }
        appellant pertain to the entry level post of Hindi Officer B
        Scale I. The appellant and the respondent were promoted
        as Hindi Officer Class I. Later on both of them were pro-
        moted to scales II and Ill and it was after about 20 years of
        entry into service that both of them came up for consid-
        eration for promotion to SMG Scale IV. Even while the c
        selection process was going on, the appellant did not
        raise this objection before the Bank management. The
        objection was taken for the first time before the High Court
        and at that stage too it was not made clear that the edu-
 .>,    cational qualifications were not relevant for the· promo- D
        tion in question but that pertained only to the entry level
        post. At this stage, therefore, the Court will not go into the
        question of the educational qualification of respondent
        No.5, more so since it is not at all conclusive or clear that
        respondent No.5 did not have English as one of the elec- E
        tive subjects at the Graduation level. [Para 7] [539-D-G]
              2. There is no substance or merit in the appellant's
        objections regarding his Performance Appraisal Ratings
        for the three years in question. It is true that in the year
        1996 the appellant's Reporting Officer was for less than F
        six months but the appellant himself was responsible for
        the same to a great extent as he did not submit his self
        appraisal in time. Though in the year 1996 the appellant's
        Reporting Officer was for less than six months, by the
        time the appraisal rating for the year 1997 was written the G
        appellant had already worked under him for more than
        six months. The Performance Appraisal Rating of the ap-
 -.,-   pellant given for the year 1996-97 was thus beyond any
        objection. Even if the Performance Appraisal Rating for
        the year 1995-96 is excluded for both the candidates, the H
    536       SUPREME COURT REPORTS               [2008] 13 S.C.R


A   position would still remain the same as the appellant
    would have only a 'Good' remark as against the 'Very
    Good' remark for respondent No.5 for the year 1996-97.
    [Paras 11, 12 and 13] [542-A-F]
        3. It is not correct to contend that the rating of 'Very
B Good' in the year 1995 and of 'Good' for the year 1996-97
  being a climb down, (as in the preceding years he had
  'Excellent' ratings) it was incumbent upon the authorities
  to intimate the appellant about his ratings for the two years
  in question; and that in absence of such intimation, the
C ratings for those two years should not have been taken
  into account and instead the ratings for the earlier years
  should have been considered for the purpose of promo-
  tion. [Para 14] [542-G]
D        Satya Narain Shukla vs. Union of India and Ors. 2006
    (9) sec 69 - relied on
                          Case Law Reference
          2006 (9) sec 69           Relied on          Para 15
E        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5683
    of 2008
         From the final Judgment and Order dated 24.11.2006 of
    the High Court of Judicature at Bombay in Writ Petition 1412 of
    1997
F
        A.K. Srivastava, Satish Jagalan and Kishan Datta for the
    Appellant.
        L.N. Rao Jayshree \Nad, Ashish Wad, Neeraj Kumar,
  Chirag Kumar (for Mis. J.S. Wad & Co.) Dhruv Mehta,
G Harshvaradhan Jha, Yashraj Singh Deora and T.S. Sabarish
  (for M/s. K.L. Mehta & Co.) for the Respondents.
          The Judgment of the Court was delivered by
          AFTAB ALAM, J. 1. Leave granted.
H
                       K.M. MISHRA v. CENTRAL BANK OF                  537
                         INDIA & ORS. [AFTAB ALAM, J]

                2. A dispute over promotion to the post of Chief Manager,    A
          Rajbhasha in Senior Manager Grade, Scale IV in the Central
          Bank of India has brought this matter to this Court. Respondent
          No.5 was granted promotion to the post on 19 May 1997 in
          preference to the Appellant. He challenged the promotion given
..-   "   to the respondent before the Bombay High Court in Writ Peti-
          tion No. 1412 of 1997. The High Court dismissed the writ peti-
                                                                             B

          tion by judgment and order dated 24 November 2006. This
          appeal is filed against the judgment of the High Court.
                 3. It would be useful to state at the beginning certain basic
          facts that are admitted or are, at any rate, undeniable as that    c
          would keep us from straying into issues that have no relevance
          to the dispute giving rise to this appeal. The promotion from
          Middle Management Grade (Scale Ill) to Senior Management
          Grade (Scale IV) is made on the principle of merit-cum-senior-·
          ity from among officers who have completed five years' satis- D
 >i
          factory service in MMG scale Ill. The Bank's Promotion Policy
          for Officers in clause 3.3 provides as follows.
               "3.3. Promotion from Middle Management Grade Scale
               Ill to Senior Management Grade Scale IV - For
               promotion from Middle Management Grade Scale Ill to           E
               Senior Management Grade Scale IV, an officer should
               have completed a minimum of 5 years of satisfactory
               service in Middle Management Grade Scale Ill."

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                The selection from among the eligible candidates, i.e.,      F
          officers who have completed the qualifying service of five years
          in MMG Scale Ill is made on the basis of an interview and an-
          nual Performance Appraisal Ratings for three preceding years.
          For the promotion in question, the appellant and respondent
          no. 5, both of whom had completed five years' qualifying ser-
                                                                             G
          vice in MMG Scale Ill were assessed in the same way. In the
          interview both the appellant and respondent No.5 were awarded
~
          30 marks. In the annual PARs, however, though the appellant
          had 'Very Good', same as respondent no.5 for the year 1994-
          95, for the other two years 1995-96 and 1996-97 he had only
                                                                             H
    538      SUPREME COURT REPORTS                 [2008] 13 S.C.R.


A   'Good' against 'Very Good' obtained by respondent no.5. The
    remark 'Very Good' carried 32 marks and 'Good' 24 marks.
    Thus the Performance Appraisal Ratings of the appellant aver-
    aged out to 26.6 and that of respondent No.5 to 32. In this way,
    out of 100 the appellant had 56 .6 marks as against 62 .0 se-
B   cured by respondent No.5. Respondent No.5 was accordingly          ;\    .
    selected and promoted to the post.

         4. The appellant after unsuccessfully challenging the pro-
    motion granted to respondent no.5 before the Bombay High
    Court has brought the matter to this Court.
c
          5. From the judgment coming under appeal, it appears
    that before the High Court the promotion granted to respondent
    No.5 was assailed on one of the grounds that respondent No.5
  • did not possess the requisite educational qualifications. It was
    stated before the High Court that there were three options in
D
    regard to educational qualifications and respondent No.5 came      r- .
    in the third option that required a second class Master's de-
    gree in Economics/Commerce in Hindi medium with English
    as an elective subject at Bachelor's degree level. It was sub-
    mitted before the High Court that respondent No.5 did not fulfil
E the requirement of educational qualifications and he was wrongly
    given the promotion. The High Court considered the submis-
    sion and rejected it holding that respondent No.5 duly fulfilled
    the academic qualifications as well. Apparently, however, the
    High Court was not informed and it was completely overlooked
F that the educational qualifications referred to by the appellant
    pertained to the entry level post of Hindi Officer in Scale I.
        6. Since the issue of the educational qualifications came
  under discussion in the High Court judgment, before this Court
  it has been vastly expanded and turned into practically the main
G
  plank of attack to the promotion given to respondent no.5. A
  number of affidavits have been filed both by the appellant and
  respondent No.5 bringing on record his Master's degree, the               -y·
  Bachelor level marks-shee~s and courses of studies etc. of Agra
  University (from where respondent No.5 took his Graduation
H
                         K.M. MISHRA v. CENTRAL BANK OF                  539
  -;                       INDIA & ORS. [AFTAB ALAM, J.]

           and Master's degrees). On the basis of the affidavits and the        A
           enclosed documents, the appellant seeks to contend before
           the Court that though satisfying the first part of the educational
           criteria of having a Master's degree in Commerce in Hindi
           medium, respondent no.5 did not have English as an elective
,. - J_    subject at the Bachelor degree level. Mr. A. K. Srivastava,          B
           learned senior advocate, appearing for the appellant set forth
           before the Court in greatdetail the various documents obtained
           from the Agra University contending that the claim of respon-
           dent no. 5 that he had elective English at the Bachelor's level
           was not borne out from the University documents. Needless to         c
           say that on behalf of respondent No.5 it is equally strenuously
           argued that he fully satisfied the educational criteria and he had
           English as one of the subjects at the Graduate level.
                  7. In our considered view the matter of educational qualifi~
  ._,__,    cation of respondent No.5 is a non-issue insofar as his promo- 0
            tion to SMG Scale IV is concerned. As noted above, the educa-
            tional qualifications referred to by the appellant pertain to the
            entry level post of Hindi Officer Scale I. The appellant was pro-
            moted as Hindi Officer Class I in 1976 and respondent No,5
            came to join that post in 1978. Later ·on both of them were pro- E
            moted to scales II and Ill and it was after about 20 years of entry
            into service that both of them came up for consideration for pro-
            motion to SMG Scale IV. Even while the selection process was
            going on the appellant did not raise this objection before the
  -"'       Bank management. The objection was taken for the first time
                                                                                F
            before the High Court and at that stage too it was not made
            clear that the educational qualifications were not relevant for
           the promotion in question but that pertained only to the entry
           level post. At this stage, therefore, we are completely disinclined
           to go into the question of the educational qualification of re-
                                                                                G
           spondent No.5, more so since it is not at all conclusive or clear
           that respondent No.5 did not have English as one of the elec-
           tive subjects at the Graduation level.

                8. This takes us to consider the second objection raised
           on behalf of the appellant with regard to being given 'Good' as      H
    540      SUPREME COURT REPORTS                 [2008] 13 S.C.R.


A his Performance Appraisal Ratings for the years 1995-96 and
  1996-97. It is stated by the appellant that on the retirement of
  Mr. R. V. Tiwari, Assistant General Manager (Hindi Department)
  on 1 February 1993, he was asked to take over as Head of the
  Hindi Department on officiating basis; at that time he was in
B MMG Scale Ill. In that position, from 1June1993 he was asked          ~ ~
  to report directly to the General Manager. On the retirement of
  Mr. Arjun Bhaya, General Manager, Hindi Cell, one Mr. S.C.
  Unhelkar, Chief Manager (System and Procedure) from the main
  stream of the Bank was posted as Chief Manager, Rajbhasha
c on 1 April, 1996. The appellant objected to the posting of Mr.
  Unhelkar as he was from the main stream and his posting in
  Rajbhasha was in violation of the Government guidelines. Similar
  objections were also raised by the Central Bank Officers' As-
  sociation. It is further stated on behalf of the appellant that for
D the years 1995-96 and 1996-97 his Performance Appraisal
  Ratings were given by Mr. Unhelkar and he gave him the rating         r
  'Good' for those two years. In fairness to the appellant it must
  be noted that he does not allege any mala fide on the part of Mr.
  Unhelkar but Mr. Srivastava argued that the appellant's perfor-
  mance appraisal for the two years in question by Mr. Unhelkar
E was in breach of the guidelines provided under the Performance
  Appraisal System of Officers of the Central Bank of India.
        9. From the guidelines it appears that appraisals are to
  be made annually on calendar year basis, i.e., for the period
F from January to December. It is a two tier process in which the
  officer concerned makes his own appraisal and submits it to
  his Reporting Officer. The remarks given by the Reporting Of-
  ficer are finally reviewed by the Reviewing Officer. Clause 3 of
  the Guidelines provides that in case the concerned officer does
G not submit his self-appraisal within one month of receiving the
  format, the Reporting Authority would have the right to submit
  his report concerning the officer to the Reviewing Authority.
  Clause 6 of the Guidelines provides that if a Reporting/Review-
  ing Authority is to retire on a specified date, care should be
  taken to ensure, as far as practicable, that appraisals of the
H
                          K.M. MISHRA v. CENTRAL BANK OF                   541
                            INDIA & ORS. [AFTAB ALAM, J.]

            officers working under him are taken before his retirement. Much      A
            reliance was placed on behalf of the appellant on Clause 4 of
            the Guidelines that provides as follows:

                 "It should be ensured that theAppraisee has worked under
,.   ...         both Reporting and Reviewing Authority for a minimum
                 period of six months before he is appraised by them. If it       B
                 is not so, the appraisal form of the officer concerned should
                 be sent to the previous Reporting/Reviewing Authority
                 under whom he has worked for six months or more."

                                                          (emphasis added)        c
                   10. Mr. Srivastava submitted that in both the calendar years
            1995-96 and 1996-97 the appellant had worked under Mr.
            Unhelkar for less than six months and hence, he was not com-
            petent or authorised to give any appraisal ratings to the appel-
     _..,   lant. The appellant had worked under Mr. Unhelkar from 9 Sep-         D
            tember, 1996 to 9 March, 1997; in other words in the year 1996
            he worked under Mr. Unhelkar for about four months and in 1997
            for only three months. Mr. Srivastava also placed before us the
            appellant's performance appraisals during his service tenure.
            It appears that right from 1984 to 1994 his ratings were 'Excel-      E
            lent'. In 1995 he was given 'Very Good'. In 1996 the Reporting
            Authority gave him 'Good' and the Reviewing Authority 'Very
            Good' but the overall rating came down to 'Good'. In 1997 both
            the Reporting and Reviewing Authorities gave him 'Good'. In
            1998 the rating once again picked up to 'Very Good'.                  F
     ~·

                  11. The position in this regard is clarified in the counter
            affidavit filed by the Bank. In the Bank's counter affidavit it is
            stated that in the year 1994-95, the appellant duly submitted his
            self-appraisal before Mr. Bhaya who was the General Manager
            at that time. But in 1995-96, the appellant did not submit his G
            self-appraisal in time and though in terms of Clause 3 of the
            Guidelines Mr. Bhaya could give his appraisal rating concern-
            ing the appellant he did not do so till his retirement. The appel-
            lant submitted his self-appraisal for two years 1995-96 and
            1996-97 after Mr.Bhaya had already retired from service and H
    542      SUPREME COURT REPORTS                  [2008) 13 S.C.R.


A thus it fell upon Mr. Unhelkar to write the appellant's Performance
  Appraisal Ratings for the two years. It is true that in the year
  1996 Mr. Unhelkar was the appellant's Reporting Officer for less
  than six months but in the circumstances. for which the appel-
  lant himself was responsible to a great extent, his work appraisal
s could only be made by Mr. Unhelkar. It is further pointed out that    ~   .
  in both years 1995-96 and 1996-97 Mr. Tiwary was the Review-
  ing Authority under whom the appellant had worked for a very
  long period and against whom he did not have any objection.
        12. Mr. L.N. Rao, senior counsel appearing for the Bank,
C submitted that though in the year 1996 Mr. Unhelkar was the
  appellant's Reporting Officer for less than six months, by the
  time the appraisal rating for the year 1997 was written the ap-
  pellant had already worked under him for more than six months.
  The Performance Appraisal Rating of the appellant given for
D the year 1996-97 was thus beyond any objection. He further
  submitted that even if the Performance Appraisal Rating for the
  year 1995-96 is excluded for both the candidates the position
  would still remain the same as the appellant would have only a
  'Good' remark as against the 'Very Good' remark for respon-
E der.t No.5 for the year 1996-97.
          13. On a careful consideration of the rival contentions we
    find no substance or merit in the appellant's objections regard-
    ing his Performance Appraisal Ratings for the three years in
    question.
F
         14. Mr. Srivastava then submitted that in the preceding
  years the appellant had 'Excellent' ratings and in the year 1995
  he had 'Very Good'. The rating 'Good' for the year 1996-97
  was thus a climb down and it was incumbent upo11 the authori-
G ties to intimate the appellant about his ratings for the two years
  in question. Since no intimation was given to the appellant the
  ratings for those two years should not have been taken into ac-
  count and instead the ratings for the earlier years should have       .,
  been considered for the purpose of promotion.
H         15. We are unable to accept the submission. In Satya
                 . K.M. MISHRA v. CENTRAL BANK OF                543
                     INDIA & ORS. [AFIAB ALAM. J.]

     Narain Shukla vs. Union of India & Ors., 2006 (9) SCC 69 (81)      A
     it was held and obssrved as follows :
          "The appellant also argued that the remarks made in the
          ACR were not communicated to him. It was also urged by
          the appellant that this Court should direct the authorities to
          streamline the whole procedure so that even remarl<s like B
          "good" or "very good" made in ACRs should be made
          compulsorily communicable to the officers concerned so
          that an officer may not lose his chance of empanelment at
          a subsequent point of his service. In our view, it is not our
          function to issue such directions. It is for the Government C
          to consider how to streamline the procedure for selection.
          We can only examine if the procedure for selection as
          adopted by the Government in unconstitutional or otherwise
          illegal or vitiated by arbitrariness and mala tides."
                                                                        0
           16. On hearing counsel for the parties and on a careful
     consideration of the materials placed on record we find no merit
     in the appeal and it is accordingly dismissed. In the facts and
     circumstances of the case there shall be no order as to costs.
     K.KT                                        Appeal dismissed.      E




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