# Ajeet Pratap Singh v. U.O.I. & Ors

- **Citation:** (2023) 8 ILRA 1454
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-25
- **Case number:** Writ-A No. 2001270 of 2013
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-pratap-singh-v-u-o-i-ors-50548
- **Pages:** 17

## Headnote

A. Service Law - Absorption - Post of
Customer
Relationship
Executive
-
Appointment was made for a period of two
years - Circular dated 20.07.2010 laid
down policy for absorption of the officers
subject to having achieved minimum 60%
target during the year 2009-2010 -
Petitioner
was
not
absorbed
as
he
achieved only target 55.91%, though
various persons whose target was lower
than the benchmark of 60% have been
absorbed by the bank - Discrimination
alleged - Parity claimed - Negative parity,
how far relevant - Held, the reason for
absorption of other persons, as emerges,
is that no target was assigned to them
despite they having been appointed on
contract basis and only other work was
taken from them - Even if aforesaid four
persons had been absorbed wrongly, the
petitioner cannot claim a similar benefit
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1455
inasmuch there cannot be a negative
parity or equality. (Para 22 and 23)
B. Service Law - Principle of res judicata -
Application - Validity of circular dated
18.08.2010
and
20.07.2010
was
challenged - Earlier also writ petition
challenging
the
order
of
termination/discharge from service was
filed, in which benefit of circular dated
18.08.2010 and 20.07.2010 was sought to
be considered, accordingly High Court
directed the authority to consider the
representation - Effect - Held, once the
petitioner himself was required to be
given the benefit of the circulars dated
20.07.2010, 26.07.2010 and 18.08.2010 in
the earlier petition consequently there
cannot be any occasion for the petitioner
to resile from earlier reliefs/petition and
to now challenge the validity of the
circulars
dated
20.07.2010
and
18.08.2010 as per the reliefs prayed in the
petition,
as
the
said
action
of
the
petitioner would clearly be hit by the
principles
of
res-judicata
-
Dr.
Subramanian Swamy's case relied upon -
(Para 30 and 32)
C. Service Law - Constitution of India -
Article 226 - Writ - Policy decision -
Scope of interference - Gopinath Dash's
case relied upon - Held, the policy
decision must be left to the Government
as it alone can adopt which policy should
be adopted after considering all the points
from different angles. In matter of policy
decisions or exercise of discretion by the
Government so long as the infringement
of fundamental right is not shown Courts
will have no occasion to interfere. (Para
34 and 35)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,861 of 55,783. This is a partial read: ask again with offset=39861 for what follows._

1454 INDIAN LAW REPORTS ALLAHABAD SERIES
prove the charges by their evidence in the
first instance, and once the establishment
have done that, due opportunity has to be
given to the delinquent to cross examine
the establishment's witnesses. Thereafter,
the burden to produce evidence in rebuttal
lies on the delinquent's shoulders. This has
not at all happened in the present case and
the opportunity, of which the learned
Additional chief Standing Counsel speaks
in order to bail out the respondents, is an
opportunity envisaged at the stage of what
is popularly called the 'second show cause'.
That is a stage after the inquiry and would
certainly not cure the flaw that goes to the
root of the matter during inquiry and
vitiates the proceedings.

25. Normally, with the findings above
recorded, this Court would have quashed
the orders of dismissal, leaving it open to
the respondents to conduct an inquiry
afresh but, looking to the nature of the
charge, which does appear to be trivial and
the fact that a lot of time has gone by, this
Court is of opinion that, that course of
action is not at all warranted. Decidedly,
the punishment awarded here falls into that
exceptional category, which is known to
law as shockingly disproportionate.

26. In the circumstances, this petition
succeeds, and, is, allowed. The impugned
order dated 15.08.2005 passed by the
Nagar Ayukt Nagar Nigam, Allahabad and
the order dated 12.03.2007 passed by the
Commissioner,
Allahabad
Divison,
Allahabad are hereby quashed.

27. A mandamus is issued ordering
the Nagar Ayukt, Nagar Nigam, Allahabad
to forthwith reinstate the petitioner in
service, granting him the benefit of
continuity and seniority. However, in the
circumstances that the petitioner presently
is and considering the fact that he has not
rendered, though not for his fault, any
service to the respondents, he will be
entitled to fifty percent back-wages. Costs
easy.
----------
(2023) 8 ILRA 1454
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2023

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 2001270 of 2013

Ajeet Pratap Singh ...Petitioner
Versus
U.O.I. & Ors.. ...Respondents

Counsel for the Petitioner:
Sri Alok Mishra

Counsel for the Respondents:
A.S.G., Sri Ajit Kumar Dwivedi, Sri Alok
Kumar Tripathi, Sri Anurag Srivastava, Sri
D.P. Dwivedi

A. Service Law - Absorption - Post of
Customer
Relationship
Executive
-
Appointment was made for a period of two
years - Circular dated 20.07.2010 laid
down policy for absorption of the officers
subject to having achieved minimum 60%
target during the year 2009-2010 -
Petitioner
was
not
absorbed
as
he
achieved only target 55.91%, though
various persons whose target was lower
than the benchmark of 60% have been
absorbed by the bank - Discrimination
alleged - Parity claimed - Negative parity,
how far relevant - Held, the reason for
absorption of other persons, as emerges,
is that no target was assigned to them
despite they having been appointed on
contract basis and only other work was
taken from them - Even if aforesaid four
persons had been absorbed wrongly, the
petitioner cannot claim a similar benefit
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1455
inasmuch there cannot be a negative
parity or equality. (Para 22 and 23)
B. Service Law - Principle of res judicata -
Application - Validity of circular dated
18.08.2010
and
20.07.2010
was
challenged - Earlier also writ petition
challenging
the
order
of
termination/discharge from service was
filed, in which benefit of circular dated
18.08.2010 and 20.07.2010 was sought to
be considered, accordingly High Court
directed the authority to consider the
representation - Effect - Held, once the
petitioner himself was required to be
given the benefit of the circulars dated
20.07.2010, 26.07.2010 and 18.08.2010 in
the earlier petition consequently there
cannot be any occasion for the petitioner
to resile from earlier reliefs/petition and
to now challenge the validity of the
circulars
dated
20.07.2010
and
18.08.2010 as per the reliefs prayed in the
petition,
as
the
said
action
of
the
petitioner would clearly be hit by the
principles
of
res-judicata
-
Dr.
Subramanian Swamy's case relied upon -
(Para 30 and 32)
C. Service Law - Constitution of India -
Article 226 - Writ - Policy decision -
Scope of interference - Gopinath Dash's
case relied upon - Held, the policy
decision must be left to the Government
as it alone can adopt which policy should
be adopted after considering all the points
from different angles. In matter of policy
decisions or exercise of discretion by the
Government so long as the infringement
of fundamental right is not shown Courts
will have no occasion to interfere. (Para
34 and 35)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Arup Das & ors. Vs St. of Assam & ors.;
(2012) 5 SCC 559
2. Pankjeshwar Sharma & ors. Vs St. of J.& K. &
ors.; (2021) 2 SCC 188
3. Dr. Subramanian Swamy Vs St. of T. N. &
ors.; (2014) 5 SCC 75
4. L.P.A. No. 260 of 2015 in re: St. Bank of
India & anr. Vs Dharmendra Prasad Singh & ors.
decided on 30.04.2015
5. St. of Orissa & ors. Vs Gopinath Dash & ors.;
(2005) 13 SCC 495
6. Col. I.V.S. Gahlot Vs U.O.I. & ors.; (2018) 17
SCC 564
7. St. of U.P Vs Raj Kumar Sharma; (2006) 3
SCC 330
(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and Sri N.K. Seth, learned Senior
Advocate,
assisted
by
Sri
Anurag
Srivastava,
learned
counsel
for
the
respondent-Bank.

2. At the very outset, Sri Alok
Mishra, learned counsel for the petitioner,
states that though in pursuance to the order
of
this
Court
dated
27.04.2023,
a
supplementary
counter
affidavit
dated
18.05.2023 has been filed by the Bank but
he does not intend to

3. The aforesaid statement of Sri Alok
Mishra, learned counsel for the petitioner,
is recorded.

4. Instant petition has been filed
praying for the following reliefs:-

"i) to issue a writ, order or
direction in the nature of certiorari
quashing impugned order dated 17.5.2013
passed by the opposite party no. 6 as
contained in Annexure No.1 to the writ
petition.

ii) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents not to give
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
effect to the impugned order dated
17.5.2013 passed by the opposite party no.
6 as contained in Annexure No.1 to the writ
petition.

iii) to issue a writ, order or
direction in the nature of certiorari
quashing impugned Circular letter dated
20.7.2010 only to the extent provides a
condition of having achieved 60% target
during financial year 2009-2010 for
absorption in the

iv) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents not to give
effect to the impugned Circular letter dated
20.7.2010 only to the extent same provides
a condition of having achieved 60% target
during financial year 2009-2010 for
absorption in the services of the Bank, as
contained in Annexure No. 8 to the writ
petition.

v) to issue a writ, order or
direction in the nature of certiorari
quashing the impugned Circulars dated
18.8.2010 as well as 8.3.2011 to the extent
the same provide/restrict the benefit of
suitable revision of the business target only
in case of OMRS and not in the matter of
other contractual staff including Customer
Relationship
Executive
(Medium
Enterprises) for the purposes of permanent
absorption in the services of the bank.

vi) to issue a writ, order or
direction in the nature of mandamus
commanding the respondents not to give
effect to the impugned Circulars dated
18.8.2010 as well as 8.3.2011 to the extent
the same provide/restrict the benefit of
suitable revision of the business target only
in case of OMRS and not in the matter of
other contractual staff including Customer
Relationship
Executive
(Medium
Enterprises) for the purposes of permanent
absorption in the services of the Bank.

vii) to issue a writ, order or
direction in the nature of certiorari
quashing the Notice dated 30.8.2010 issued
by the opposite party no. 7 as contained in
Annexure No. 2 to the writ petition.

viii) to issue a writ, order or
direction in the nature of mandamus
commanding
the
opposite
parties
to
consider
the
case
of
petitioner
for
absorption as Specialist Officer in Junior
Management Grade Scale-I within a
stipulated period ignoring the impugned
condition of Circular dated 20.7.2010 and
after giving benefit of revision of Budget.
achievement as per Circular letter dated
18.8.2010, with all consequential benefits.

ix) to pass any other suitable
order or direction which is deemed just and
proper in the circumstances of the case
may also be passed.

x) to allow the writ petition with
costs."

5. Both learned counsels for the
parties agree that the facts of the case
have already been set forth in detail by
this Court in the order dated 27.04.2023.
For the sake of convenience, the order
dated 27.04.2023
is
reproduced
as
under:-

"1. Heard Sri Alok Mishra,
learned counsel for the petitioner and Sri
Anurag
Srivastava,
learned
counsel
appearing for the respondent-Bank.

2. Sri Anurag Srivastava, learned
counsel for the respondent-Bank files a
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1457
supplementary counter affidavit on behalf
of respondents no. 2 to 7.

3. Sri Srivastava states that
though the affidavit is dated 27.09.2018,
yet a copy of the same had already been
served upon the learned counsel for the
petitioner in September, 2018 itself but
inadvertently the same could not be filed.

4. Considering the aforesaid, the
supplementary counter affidavit be kept on
record.

5. Instant writ petition has been
filed
challenging
the
order
dated
17.05.2013, a copy of which is annexure 1
to
the
writ
petition
whereby
the
representation of the petitioner has been
rejected.

6. The case set forth by the
petitioner is that the petitioner was initially
appointed on 01.09.2008 for a period of
two years as Customer Relationship
Executive- Medium Enterprises (CRE-ME)
for
the
period
from
01.09.2008
to
30.08.2010. Copy of the appointment order
is annexure 3A to the writ petition.

7. The respondents had issued a
circular dated 20.07.2010, a copy of which
is annexure 6 to the writ petition whereby a
policy of Permanent Absorption of Officers
Marketing and Recovery (rural), Technical
Officers (Farm Sector), Micro Finance
Marketing
Officers,
Customers
Relationship Executive (PB) and Customer
Relationship Executive (ME) in Junior
Management Grade Scale-I (JGMS-I) as
specialist officer was issued.

8. As per Clause 2.1 of the
aforesaid circular, those officers who were in
service of the Bank on 14.07.2010 were
eligible for absorption subject to having
achieved minimum 60 % target during the
year 2009-2010. The performance of the
officers was to be assessed as per the
performance evaluation matrix advised by
the concerned SBU.

9.
Through
an
order
dated
30.08.2010, a copy of which is annexure 2 to
the writ petition the petitioner was informed
that his contractual period of two years of
appointment is to expire on 30.08.2010 and
as such, he was required to liquidate his
liabilities towards the bank and surrender the
laptop.

10. The contention of learned
counsel for the petitioner is that this was the
termination order that had been issued by the
respondent-Bank terminating his services at
the end of the contractual period.

11. The petitioner, upon finding
that his performance was 55.91 percent of his
budgeted target viz-a-viz certain other
persons whose performance was simply 0 %
and certain other persons whose target was
lower than the petitioner yet had been
absorbed in terms of the circular dated
20.07.2010 filed Writ-A No. 57034 of 2010
Inre; Yogesh Kumar and Ors Vs. Union of
India and Ors and this Court disposed of the
writ petition vide judgment and order dated
28.01.2013 permitting the petitioners to
submit a fresh representation which was
directed to be decided by the respondentBank in accordance with law and the
relevant circular in this regard.

12. In pursuance thereof, the
petitioner claims to have submitted a
representation on 12.02.2013 which has
been rejected by means of the impugned
order dated 17.05.2013 and hence the writ
petition.
1458 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Raising a challenge to the
order impugned, the argument of learned
counsel for the petitioner is that (a) various
persons whose target was lower than the
benchmark of 60 % have been absorbed by
the bank in terms of the policy dated
20.07.2010 including one Sri A.P.S. Verma
whose target was 0 % (b) while rejecting
the representation of the petitioner, the
respondents have indicated that the
specific contention of the petitioner that
his percentage could be more than 100 %
has been negated by the bank as
preposterous yet with respect to one Sri
Manish Kumar Singh whose format has
been annexed as part of annexure 10 to
the writ petition, his performance and
percentage terms have been indicated as
108.33% i.e more than 100 % and thus
the contention of the respondents is
belied from records and (c) different
target have been given to persons who
were working in the same region which is
patently discriminatory.

14. Learned counsel for the
petitioner has elaborated the ground of
persons with 0% recovery having been
absorbed in terms of the circular dated
20.07.2010 by giving the example of one
Sri A.P.S. Verma.

15. Attention has also been
invited towards an order passed in the case
of a person similarly circumstanced namely
Sri Ajay Kumar Sonkar in Writ Petition No.
1271 (SB) of 2013 wherein a Division
Bench of this Court noticing that certain
persons with lower target had been
absorbed had required the respondents to
file an affidavit indicating the action which
has been taken with respect to one Sri A.P.
S. Verma who has been absorbed despite
having 0 % achievement in the year 20092010.

16. Learned counsel for the
petitioner has also invited the attention to
the Court towards the specific averment
made in paragraph 27 of the writ petition
wherein it has categorically been stated
that Sri A.P.S. Verma despite having 0 %
achievement has been absorbed in the
services of the bank. He contends that reply
to paragraph 27 of the counter affidavit has
been given in paragraph 20 of the counter
affidavit filed by the respondent-bank
wherein it has been contended that Sri
A.P.S.Verma and three other persons have
been found to have been permanently
absorbed erroneously in the bank service
without confirming to parameters of
achievement of 60 % of the targets as
mentioned in the corporate center letter
dated 20.07.2010 and that further steps are
being initiated by the bank and show cause
notice has been issued to them.

17. Learned counsel for the
petitioner states that despite the said
averment having been made in paragraph
20 of the counter affidavit, no further
action
has
been
taken
against
Sri
A.P.S.Verma and other three persons
rather the action which was sought to be
initiated against the aforesaid four persons
namely Sri A.P.S.Verma and three others
has been held back by the bank.

18. Responding to the same, Sri
Anurag Srivastava, learned counsel for the
respondent-bank states that in terms of the
circular dated 20.07.2010, those persons
like the petitioner could only be absorbed
in the services of the respondent-bank who
met 60 % of the target. He contends that as
the petitioner has only achieved 55.91 % of
the budgeted target consequently, taking
into consideration the provisions of the
scheme, his services have not been
absorbed rather he has been terminated
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1459
vide order dated 30.08.2010 and thus there
is no infirmity in the action taking by the
respondent-bank.
19. Further responding to the allegations
made in the writ petition of Sri A.P.S.
Verma and three other persons whose
target was 0 % and also lower than the
target of 55.91 % as achieved by the
petitioner, the contention of Sri Anurag
Srivastava, Advocate is that despite the
bank having initiated action against the
four officers as per the specific averment
made in paragraph 20 of the counter
affidavit yet the said action has been held
back. Sri Anurag Srivastava, Advocate,
however, has placed reliance on the
judgment of the Apex Court in the case of
State of U.P Vs. Raj Kumar Sharma
reported in (2006) 3 SCC 330 to contend
that even if certain candidates have been
granted benefit wrongly there cannot be
any question of grant of negative parity to
the petitioner i.e even if some appointment
has been made by mistake or wrongly that
would not confer any right of appointment
to the petitioner as Article 14 of the
Constitution of India does not envisage
negative equality and if the State has
committed a mistake it cannot be forced to
perpetuate the said mistake.

20. Having heard the learned
counsel appearing for the contesting
parties and having perused the records
what emerges is that the petitioner who had
been appointed as Customer Relationship
Executive
(ME)
vide
order
dated
01.09.2008 for a period of two years was
terminated
through
an
order
dated
30.08.2010 on the ground that as per the
policy dated 20.07.2010 he has failed to
meet the target of 60 %. The representation
filed by the petitioner in this regard has
also been rejected by the respondents vide
order
dated
17.05.2013
on
various
grounds.

21. Without entering into the
other grounds as have been raised by the
petitioner what needs to be thrashed out
first by the Court is the specific averment
as made by the petitioner that four persons
of which one is Sri A.P.S.Verma, who had
only 0 % achievement to his credit along
with the three others whose achieved target
was much lower than the benchmark of 60
%, have been absorbed/appointed in the
bank in terms of the policy dated
20.07.2010 and despite action having been
initiated by the respondent-bank against
the four persons, the said action has been
held back. Further, as per Sri Anurag
Srivastava,
learned
counsel
for
the
respondent-bank, though action has been
initiated against the said four persons, the
action has been held back as categorically
admitted by Sri Anurag Srivastava, learned
counsel for the respondent-bank. However,
his argument is that even if the four
persons have been appointed or absorbed
erroneously despite having achieved 0 %
percent target, this Court cannot compel
the respondent-bank to commit the same
mistake.

22. In the instant case, it is not a
matter of the writ Court requiring the
respondent-bank to commit a mistake. The
reason is not far to seek inasmuch as the
initially the respondent-bank has admitted
that it has committed a mistake in having
absorbed persons like Sri A.P.S.Verma who
are having only 0 % target and a specific
averment has been made in paragraph 20
of the counter affidavit filed by the
responsible officer of the bank namely the
Chief Manager of the State Bank of India,
Ashok Nagar, Kanpur wherein it has been
indicated that necessary steps are being
initiated in this regard and show cause
notices have been issued to them. Later, the
action has been held back. Of course, there
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be any negative parity meaning
thereby that the respondent-bank cannot be
allowed to repeat the same mistake if any,
which
has
been
committed
in
the
absorption of persons who are having a
lower target than the benchmark as
specified in the circular dated 20.07.2010.
However, in the instant case, the bank
initially stated that it has committed a
mistake but after initiation of action
against the said four persons, it has held
back the action meaning thereby that it has
exercised some power as is vested in the
bank whereby despite the persons having
lower target having been absorbed yet have
been retained in the service of the bank and
that too despite the writ Court having been
informed as per the specific averment made
in paragraph 20 of the counter affidavit of
the action being proposed. Thus, it would
not be a case of negative parity and
consequently, the judgment of the Apex
Court in the case of Raj Kumar Sharma
(supra)
may
prima
facie
have
no
applicability in the facts of the instant case.

23. Accordingly, keeping in view
the
aforesaid
discussion
and
before
proceeding further with the matter, this
Court would require the General Manager,
Network-II, Local Head Office, Moti Mahal
Marg, Lucknow i.e respondent no. 6 at this
stage
to
file
his
personal
affidavit
indicating the reasons as to why despite the
writ Court having been informed in
paragraph 20 of the counter affidavit filed
by Sri Amit Kumar, Chief Manager, State
Bank Of India, Kanpur that action is being
proposed against Sri A.P.S.Verma and
three others of having been absorbed in the
bank despite not having met the target of
60 % rather having 0% recovery the action
against the said persons has been held
back. While filing the personal affidavit,
the power which has been exercised while
holding back the action against the said
four persons would also be indicated in the
affidavit to be filed by the respondent no. 6.

24. Let the said affidavit be filed
within three weeks failing which the
respondent no. 6 shall appear in person
along with records to assist the Court.

25. List this case on 23.05.2023."

6. From perusal of the order dated
27.04.2023, it emerges that the grounds of
challenge as raised by the learned counsel
for the petitioner have been set forth in
paragraph 13 of the order dated 27.04.2023,
which were namely (a) various persons
whose target was lower than the benchmark
of 60 % have been absorbed by the bank in
terms of the policy dated 20.07.2010
including one Sri A.P.S. Verma whose
target was 0 % (b) while rejecting the
representation
of
the
petitioner,
the
respondents have indicated that the specific
contention of the petitioner that his
percentage could be more than 100 % has
been negated by the bank as preposterous
yet with respect to one Sri Manish Kumar
Singh whose format has been annexed as
part of annexure 10 to the writ petition, his
performance and percentage terms have
been indicated as 108.33% i.e more than
100 % and thus the contention of the
respondents is belied from records and (c)
different targets have been given to persons
who were working in the same region
which is patently discriminatory.

7. This Court vide order dated
27.04.2023
had
itself
indicated
that
supplementary counter affidavit is required
to be filed only on ground (a) as raised by
learned counsel for the petitioner, which
was that various persons whose target was
lower than the benchmark of 60 % have
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1461
been absorbed by the bank in terms of the
policy dated 20.07.2010 including one Sri
A.P.S. Verma whose target was zero
percent. The other grounds are still to be
considered by this Court.

8. In pursuance to the order dated
27.04.2023,
a
supplementary
counter
affidavit dated 18.05.2023 has been filed
by the respondent Bank.

9. So far as the ground (a) which was
that various persons whose target was
lower than the benchmark of 60 % have
been absorbed and consequently the
petitioner whose achievement was only
55.91% of the budgeted target should also
be absorbed more particularly when a
person with zero percent target namely one
Sri A.P.S. Verma has been absorbed and as
such the petitioner is also entitled for
similar benefit, Sri N.K. Seth, learned
Senior
Advocate,
explained
the
circumstances in which Sri A.P.S. Verma
and three others whose achievement was
much below the target of 60% were
absorbed.

10. He states that upon discovering
that four persons namely Sri Anrudh
Prakash Singh Verma (A.P.S. Verma), Sri
Arvind Kumar Pal, Sri Ram Anuj Singh
and Sri Vijay Kushwaha have been
appointed on the post of Marketing &
Recovery Officer (Rural) in violation of
terms of the relevant circulars, their records
were scrutinized and it was found that they
did not fulfill the criteria for permanent
absorption as per aforesaid scheme and
consequently notices dated 23.02.2013
were issued to them requiring them to show
cause as to why their appointment should
not be cancelled. Copies of the said show
cause notices dated 23.02.2023 have been
filed
as
Annexure
SCA-1
to
the
supplementary counter affidavit. Sri Seth
argues that all four officers submitted their
reply which have been filed as Annexure
SCA-2 to the supplementary counter
affidavit. Upon scrutiny of the entire
records and their reply, it was found that all
four persons had been appointed in
December 2009 and in the relevant
financial year 2009-2010, no target was
assigned to them and despite having been
appointed on contract basis on the post of
Marketing & Recovery Officer (Rural) only
other work was taken. Considering this
aspect of the matter and the fact that since
all the officers were working satisfactorily
since absorption in the service of the bank
in 2010 and in their case the question of
target not being involved consequently the
said officers have been continued in
service.

11. So far as the other ground as
raised by learned counsel for the petitioner
is concerned namely that while rejecting
the representation of the petitioner, the
respondents have indicated that the specific
contention of the petitioner that his
percentage could be more than 100 % has
been negated by the bank as preposterous
yet with respect to one Sri Manish Kumar
Singh whose format has been annexed as
part of Annexure 10 to the writ petition, his
performance and percentage terms have
been indicated as 108.33% i.e more than
100%, Sri Seth argues that even if 108.33%
as recorded against the name of Sri Manish
Kumar Singh is to be ignored and recalculation is to be done, his overall
percentage of budget achieved would be
approximately 62.46% which would be
above the target of 60% and consequently
when admittedly the percentage of the
petitioner was less than 60% and even if it
has been erroneously indicated that the
target of Sri Manish Kumar Singh is above
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
100% the same would not make any
difference as the percentage of budget
achieved by Sri Manish Kumar Singh being
more than 60% no error has been
committed with his absorption. Even
otherwise it is contended that even if above
100% target of the petitioner is to be
considered the same would not make his
budgeted target more than 60% so as to
enable him to swim within the ambit of
60% target which was required to be
completed by all Customer Relationship
Executive (Medium Enterprises).

12. Responding to the third ground as
raised by learned counsel for the petitioner
i.e. different targets have been given to
persons who were working in the same
region, placing reliance on the averments
contained in paragraph 17 of the counter
affidavit dated 01.05.2015 the argument of
Sri Seth is that the targets of the officers
were fixed differently in different areas of
operation depending upon the potentiality
of business in the area.

13. Elaborating the same, the
argument of Sri Seth is that targets were
fixed depending upon the areas in which
the officers were required to serve. As an
example, it is stated that in case an officer
is required to serve in an area in which the
branch is having large business it would be
easier to achieve the target and hence the
target was fixed higher while in an area in
which the bank was having a lower
business, a lower target was fixed and such
fixation of target cannot be said to be
discriminatory.

14. Another argument of Sri Seth is
that even if for the sake of arguments it is
accepted that four persons to whom a show
cause notice had been issued by the
respondent Bank on the ground of they not
having achieved the target is taken at the
face value and the said persons were
wrongly absorbed even then as the
petitioner has failed to meet the target of
60% consequently no mandamus can be
issued for grant of parity with those who
may have been wrongly absorbed as there
cannot be any negative parity. In this
regard, reliance has been placed on the
judgments of the Apex Court in the case of
Arup Das and others vs. State of Assam
and others - (2012) 5 SCC 559 and
Pankjeshwar Sharma and others vs.
State of Jammu and Kashmir and others
- (2021) 2 SCC 188.

15. Sri Seth also argues that the
petitioner
had
earlier
filed
Writ-A
No.57034 of 2010 along with Yogesh
Kumar and others which writ petition was
disposed of vide judgment and order dated
28.01.2023 as per order passed in Writ-A
No.6084 of 2011 in re: Rajeev Kumar
Pushkar vs. S.B.I. and others. Copies of the
said orders have been filed as Annexure-8
to the writ petition.

16. Sri Seth argues that circulars
dated
20.07.2010,
26.07.2010
and
18.08.2010 were required to be considered
while deciding the representation of the
petitioner. It is contended that once the
petitioner has already been given the
benefit by the writ Court of the circulars
dated
20.07.2010,
26.07.2010
and
18.08.2010 consequently by means of the
instant writ petition, the petitioner cannot
be allowed to challenge the validity of the
said
circulars
as
the
principles
of
constructive
res-judicata
would
be
applicable. In this regard, reliance has been
placed on the judgment of the Apex Court
in the case of Dr. Subramanian Swamy
vs. State of Tamil Nadu and others -
(2014) 5 SCC 75. Reliance has also been
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1463
placed on the judgment of Delhi High
Court passed in L.P.A. No.260 of 2015 in
re: State Bank of India and another vs.
Dharmendra Prasad Singh and others
decided on 30.04.2015.

17. It is also argued that the circulars
are only policy decisions and the Bank
being a financial entity, is perfectly
empowered and entitled to issue such
circulars for its own business working and
in order to consider the cases of the persons
who are working and there would not be
any question of raising a challenge to the
same as the said circulars have been issued
in normal working of the Bank and the
same being only a policy decision they
cannot be made subject to challenge by
means of writ petitions. In this regard,
reliance has been placed on the judgments
of the Apex Court in the case of State of
Orissa and others vs. Gopinath Dash and
others - (2005) 13 SCC 495 and Col.
I.V.S. Gahlot vs. Union of India and
others - (2018) 17 SCC 564.

18. Responding to the said arguments,
Sri Alok Mishra, learned counsel for the
petitioner argues that despite the detailed
order of this Court dated 27.04.2023 the
respondents while filing the supplementary
counter affidavit have failed to indicate the
reasons which prevailed upon them to
appoint those persons, as indicated by the
learned counsel for the petitioner, whose
target was zero percent. He also contends
that in the show cause notice which had
been issued to four persons, copies of
which have been annexed along with the
supplementary counter affidavit, it has been
indicated that their absorption was against
the policy but in the reply which has been
given by all four persons it was only
indicated that as they have already been
absorbed in service there is no question of
any show cause notice which fact has not
been considered by the respondent Bank
while deciding to continue those four
persons in service. It is also contended that
as four persons have been absorbed without
having achieved the targets set for them
consequently the petitioner should also be
absorbed in service on the same analogy.

19. No other ground has been raised
by learned counsel for the petitioner neither
any case law has been cited.

20. Having heard learned counsel for
the parties and having perused the records,
what emerges is that three grounds, as
already indicated above, have been urged
by learned counsel for the petitioner in
challenging the order impugned. As such
the Court proceeds to deal with the three
grounds.

21. The first ground as urged by
learned counsel for the petitioner is that
various persons whose target was lower
than the benchmark of 60%, as fixed by the
Bank, have been absorbed by the bank in
terms of the policy dated 20.07.2010
including one Sri A.P.S. Verma whose
target
was
zero
percent,
while
discriminating against the petitioner whose
target was also below the benchmark and in
not absorbing the petitioner.

22.

From
a
perusal
of
the
supplementary counter affidavit which has
been filed by the respondent Bank to which
learned counsel for the petitioner has
waived off his right of filing a reply, it is
apparent that all the four persons who
failed to meet the target of 60% as
specified in various circulars for the
purpose of absorption, were absorbed. The
reason for their absorption, as emerges, is
that no target was assigned to them despite
1464 INDIAN LAW REPORTS ALLAHABAD SERIES
they having been appointed on contract
basis and only other work was taken from
them. Accordingly, once no target was
assigned to the said four persons and other
work was assigned to them consequently
no error is found in those persons having
been absorbed and as such there would not
be any occasion for treating the said
persons to have zero percent performance
which might entail the petitioner to claim a
similar relief.

23. Needless to mention that even if
aforesaid four persons had been absorbed
wrongly even then the petitioner cannot
claim a similar benefit inasmuch there
cannot be a negative parity or equality.

24. In this regard, the Apex Court in
the case of Arup Das (supra) has held as
under:-

"This Court went on to observe
further that even if in some cases
appointments had been made by mistake
or wrongly, that did not confer any right
of appointment to another person, as
Article 14 of the Constitution does not
envisage negative equality and if the State
had committed a mistake, it cannot be
forced to perpetuate the said mistake."

(emphasis by the Court)

25. Likewise, the Apex Court in the
case of State of U.P Vs. Raj Kumar
Sharma - (2006) 3 SCC 330 has held as
under:-

"Even
if
in
some
cases
appointments have been made by mistake
or wrongly that does not confer any right
on another person. Article 14 of the
Constitution does not envisage negative
equality, and if the State committed the
mistake it cannot be forced to perpetuate
the same mistake. (See: Snehprabha v.
State of U.P. & Ors. (AIR 1996 SC 540),
Secretary, Jaipur Development Authority,
Jaipur, v. Daulat Mal Jain & Ors. (1997
(1) SCC 35), State of Haryana and Ors. v.
Ram Kumar Mann (1997 (3) SCC 321),
Faridabad C.T. Scan Centre v. D.G. Health
Services & Ors. (1997 (7) SCC 752),
Jalandhar
Improvement
Trust,
V.
Sampuran Singh (AIR 1999 SC 1347), State
of Punjab and Others v. Dr. Rajeev Sarwal
(1999 (9) SCC 240), Yogesh Kumar and
Ors. v. Govt. of NCT, Delhi and Ors. (2003
(3) SCC 548), Union of India and Anr. v.
International Trading Co. and Anr. (2003
(5) SCC 437) and Kastha Niwarak G.S.S.
Maryadit, Indore v. President, Indore
Development Authority (JT 2006 (2) SC
259)."

(emphasis by the Court)

26. Likewise, the Apex Court in the
case of Pankjeshwar Sharma (supra) has
held as under:-

"This Court further held that
even if in some cases appointments had
been made erroneously or by mistake, that
did not confer any right of appointment to
another person as Article 14 of the
Constitution does not envisage negative
equality and if the State or its authority
had committed a mistake at any given
stage, it cannot be forced to perpetuate the
said mistake under the writ jurisdiction of
the High Court under Article 226 of the
Constitution."

(emphasis by the Court)

27. When the impugned action on the
part of the respondents is seen in the
context of law laid down by the Apex
8 All. Ajeet Pratap Singh Vs. U.O.I. & Ors.
1465
Court in the aforesaid judgments, it clearly
emerges that even if four persons, as
referred to above, did not meet the criteria
specified for their absorption i.e. 60%
performance and they were absorbed
wrongly yet there cannot be any extension
of a similar benefit to the petitioner
inasmuch as there cannot be any negative
parity. The Court hastens to add that the
reasons indicated by the respondent Bank
in its supplementary counter affidavit
pertaining to absorption of those four
persons is found satisfactory pertaining to
they having been absorbed as no specific
target had been fixed for them. Thus, the
first ground is rejected.

28. So far as the second ground taken
by learned counsel for the petitioner that
while rejecting the representation of the
petitioner, the respondents have indicated
that the specific contention of the petitioner
that his percentage could be more than
100% has been negated by the bank as
preposterous yet with respect to one Sri
Manish Kumar Singh whose format has
been annexed as part of annexure 10 to the
writ
petition,
his
performance
and
percentage terms have been indicated as
108.33% i.e more than 100 % and thus the
contention of the respondents is belied
from records, the argument of Sri Seth,
learned Senior Advocate that even if the
said averment is to be ignored pertaining to
the petitioner yet in case the achievements
of Sri Manish Kumar Singh are to be seen
and calculation is to be done by ignoring
the percentage of 108.33% even then the
percentage of Sri Manish Kumar Singh
would be 62.46%. It is not the case of the
petitioner that in case his performance is
seen over and above 100% the same would
entail he meeting the performance of 60%.
Thus, keeping in view the aforesaid, the
second ground taken by the petitioner is
also not found tenable in the eyes of law
and accordingly rejected.

29. So far as the third ground is
concerned i.e. different targets having been
given to the persons who were working in
the same region which gives rise to
discrimination, suffice to state here that as
per averments made in paragraph 17 of the
counter affidavit it has been categorically
stated by the respondent Bank that targets
of the officers were fixed differently in
different areas of operations depending
upon the potentiality of the business in the
area. The respondent is a Bank. It is within
its powers to fix targets for the officers. It
is for the officers to meet the said targets of
a commercial entity like a Bank and in case
the petitioner failed to meet the target or
the standard fixed by the Bank, he has to
thank himself for not having met the said
criteria and consequently there cannot be
any discrimination in fixing the targets in
different areas of operations depending
upon the potentiality of the business of the
Bank it being a financial entity. The said
ground is thus rejected.

30. So far as the challenge as raised
by the petitioner to the circulars dated
18.08.2010 and 20.07.2010 as emerges
from perusal of reliefs (iii) (iv) (v) (vi) and
(viii)
is
concerned,
admittedly
the
petitioner
had
earlier
filed
Writ-A
No.57034 of 2010 in re: Yogesh Kumar
and others vs. Union of India and others,
which was disposed of by this Court at
Allahabad vide order passed in Writ-A
No.6084 of 2011. In Writ-A No.6084 of
2011, the writ Court observed that
respondent Bank while passing the order of
termination/discharge from service had not
considered the circulars dated 20.07.2010,
26.07.2010 and 18.08.2010 and thus
directed the Bank that while deciding the
1466 INDIAN LAW REPORTS ALLAHABAD SERIES
representation
of
the
petitioner
the
respondent Bank shall not be influenced by
the order of termination/discharge from
service.