The Allahabad High Court has held that a policy stipulating that officers who score prescribed marks at training “shall be considered” for placement in a higher grade confers only a right to be considered, not a right to be placed in that grade. It held that a cap restricting such placement to the top 10% of a batch, brought in while the batch was still under assessment, did not change the rules of the game midway.

The Court held that the right to confirmation and to placement arises under the State Bank of India Officers' Service Rules, 1992, and not under the training policies issued by the Bank's Central Human Resources Committee. The first proviso to Rule 16(1) allows the Bank, at its discretion, to place a Probationary Officer or Trainee Officer in MMGS-II subject to merit and suitability for a future leadership role.

The bench of Justice Saumitra Dayal Singh and Justice Swarupama Chaturvedi held,

“..merely because a Probationary Officer or a Trainee Officer may be confirmed, he may not automatically earn a further right to be granted placement/fitment in MMGS–II. To that end, the Rules prescribe Bank has been granted ample discretion to be exercised on suitability of Probationary Officers/Trainee Officers for future leadership role. That mandate arises on the own strength of the statutory Rules.”

The original petitioners were Assistants with the State Bank of India, promoted as Trainee Officers of the 2019 batch. Their appointment letters stated that confirmation after training would be in terms of the extant policy. Under the policy dated 23^rd April 2019, officers securing 50% marks (45% for SC, ST and PwD candidates) in the continuous assessment “shall be confirmed” in JMGS-I, while those securing 75% (70% for SC/ST candidates) “shall be considered” for placement in MMGS-II.

While the officers were still on probation, a note before the Committee recorded feedback about lack of rigour in assessment and about officers placed in MMGS-II lacking the experience and maturity required at middle management positions. The Bank then issued an e-circular dated 16^th December 2020 capping placement in MMGS-II at 10% of the batch size, from the 2019 batch onwards.

Writ Court declared that policy arbitrary and void as applied to the 2019 batch and directed that the petitioners be placed in MMGS-II under the earlier policy. Thereafter, an intra-court appeal was filed.

The Court held that the choice of “shall be confirmed” in one clause and “shall be considered” in the other was deliberate.

“Rules of grammar exist and are actively and purposefully employed by legislatures and in legislative functions, to convey exact meaning; to cause different effect, for different exact/purpose.”

Noting that in Divisional Personnel Officer, Southern Railway v. T.R. Chellapan the Supreme Court had read “consider” in contradistinction to “determine”, the Court held that the higher marks created only an eligibility to enter the zone of consideration, suitability for a future leadership role remaining a separate test.

“Thus, by virtue of own force of legislative character of Rule 16 of the Rules, minimum merit (at training), alone would never be enough to claim placement/fitment in MMGS-II.”

The Court noted that 807 of 816 Trainee Officers and 1445 of 1592 Probationary Officers of the 2017 batch, and 1497 of 1524 Trainee Officers of the 2018 batch, had been placed in MMGS-II on the solitary consideration of the minimum marks achieved. As the marks governing the zone of consideration had not been raised, the cap worked no impermissible change, held the Court.

“…to the extent the Old Policy did not vest in the original petitioners/respondents a substantive right to be placed/fitted in MMGS–II, solely on the strength of minimum marks obtained during training process, it is not possible to recognize existence of any change in the rules of the game, on that basis alone.”

On discrimination, the Court held that the 2018 batch Trainee Officers had already been assessed under the earlier policy when the new policy issued, whereas the assessment of the 2019 batch was then pending, furnishing a rational basis to distinguish between them. It also observed that the Probationary Officers of the 2019 batch had not challenged the policy.

“To the extent, both phrases “shall be confirmed” and “shall be considered” have been used under Clause 5G of the Old Policy, for two different purposes – one to confirm all probationers in service and another to place/fit some of such confirmed employees in MMGS-II, it would be wrong, if not impermissible to read the same meaning in these two grammatically different phrases, used in obviously/visibly different context.”

Holding the policy consistent with the Rules and not retrospective, and finding it protected by the ratio in State of Haryana v. Subhash Chander Marwaha, the Court allowed the Special Appeal and dismissed the writ petition.

Case Title: The State Bank of India and 5 others v. Priyanshu Arya and 39 others

Counsel for Appellants :- Sri Shashi Nandan, Senior Advocate, assisted by Ms. Shruti Malviya

Counsel for Respondents :- Sri Ashok Khare, Senior Advocate, assisted by Sri Pankaj Dubey

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