M A Chowdhary, J
1. This letters patent appeal under Clause 12 of the Letters Patent is directed against the judgment/order dated 11.11.2020 rendered by a learned
Single Judge of this Court [ for short ‘Writ Court’] dismissing the Writ Petition registered as WP(C) No.470/2020 preferred by the
appellant/petitioner, in limine, as not maintainable and relegating the appellant/petitioner to approach the civil court for seeking enforcement of his
contractual relationship and/or redressal of his contractual disputes with the Bank.
2. The appellant/petitioner has challenged the impugned judgment on the following grounds:
A. For that the impugned judgment and order dated 11.11.2020 is vitiated in law for in contradistinction to the succinct and the legally
substantiated case as set up by the Appellant in the Writ Petition, the impugned judgment embarks on unfortunate mis-adventurism and has
erroneously dismissed the Writ Petition not on the grounds urged by the Appellant or for that matter even on the grounds taken in
opposition by the Respondents but proceeds on wholly erroneous assumptions and conjectures that has in sequel thereto resulted in
absolute miscarriage of justice;
B. For that the learned Single Judge while rendering the impugned Judgment has erred in law in not appreciating that the Respondent No.2-
Bank being a Public Authority is in the matter of employment/service matters subject to constitutional obligation limitations therefore, any
cause accruing to an employee in relations to matter of employment/service falls clearly in the realm of Public Law and not Private Law, the
impugned judgment in so far it declines the relief prayed for by the Appellant in the writ petition entitled though ex-debito-justitiae and
relegates the Appellant to private law remedy and thus the impugned judgment in sequel thereto has been rendered bad and unsustainable
in law and liable to be set aside/reversed;
C. For that the learned Single Judge while rendering the impugned judgment has conveniently ignored the case set up by the Appellant in its
totality and has, while cherry picking lines and divorcing them from the context, led to the unwarranted and anachronistic conclusion that
the Appellant has admitted in the writ petition that the Appellant has deemed to have retired from the service of the Respondent No.2-Bank;
D. For that as a matter of fact substantiated by the records that no such admission direct or implied has been made and/or can be said to
have been made by the Appellant herein, rendering in sequel thereto the impugned judgment as well as the view taken and the conclusion
drawn as being without any basis and therefore, bad and unsustainable in law and liable to be set aside;
E. For that the learned Single Judge while rendering the impugned judgment has erred in law in not appreciating in its true and correct
perspective the unequivocal and unambiguous compensation policy of the respondent No.2 Bank that admits of no doubt vis-Ã -vis the
continuation of pensionary benefits to serving management including Chairman and whole-time directors and in sequel thereto is rendered
bad and unsustainable in law and liable to be set aside/reversed;
F. For that the learned Single Judge has completely misdirected in point of law when under gross misconstruction of the compensation
policy it is held that such compensation policy was not applicable to the Appellant when as a matter of fact the Appellant being the
Chairman and CEO was amongst the serving management of the Respondent No.2 Bank and was hence entitled to contribution towards
pensionary benefits on account of continued service in the Respondent No.2-Bank. The impugned judgment on this court as well is rendered
bad and unsustainable in law and thus liable to be set aside/reversed;
G. For that the impugned judgment suffers from ex-facie perversity in as much as it under gross misconception/misconstruction of the
compensation policy as well as the factum of contribution made by the Appellant towards the Pension Fund post appointment as Chairman,
duly accepted by the Respondent No.2 Bank being in sync with the compensation policy though, has been, without any basis and/or
assigning any reason therefor, virtually dubbed as an act of error on part of the Respondent No.2-Bank as well as the Respondent No.3,
rendering in sequel thereto the impugned judgment bad and unsustainable in law and thus liable to be set aside/reversed;
H. For that the records and documents of clinching evidence including but not limited to Notification dated 29.01.2013 issued by the
Ministry of Finance clarifying inter alia the scope of the concept of deemed retirement and combined service as applicable to the employees
of Public Sector Banks who quite alike the Appellant were elevated from Career Level Post to Board Level Post has been conveniently
ignored and as a consequence thereof a grotesque result is brought about in disregard of settled position as applicable to the likes of the
Appellant being employees who, after having served at a Career Level Post appointed to a Board Level Post in a Public Service Bank.
I. For that the impugned Judgment is also vitiated for the reason of the fact that the learned Single Judge failed to appreciate that if the
concept of deemed retirement was applicable in the Respondent No.2 Bank then such deemed retirement would be applicable to all such
employees who were appointed as whole time directors (executive directors) on the Board of the Respondent No.2 Bank and all such
employees would cease to be so on the case of their appointment as whole time directors in the Respondent No.2 Bank, without bestowing
any consideration that the emphatic statement of the Appellant that no such employee of the Respondent No.2 Bank on being appointed as
whole-time director was deemed to be retired and that thus the concept of deemed retirement has no relation to the service of an employee in
the Respondent No.2 Bank deserved in law, rendering the impugned Judgment unsustainable in law and liable to be set-aside/reversed.
J. For that the learned Single Judge has wrongly relied on the ratio of Chanda Kochar’s case being unmindful of the glaring fact as
substantiated in the pleadings that the ratio of Chanda Kochar was passed in a case of private bank under no governmental control and
not a public sector Bank and that no parallel could or can in law be drawn in between the two legal entities one in the realm of private law
and other in the realm of public law being Public Authority amenable to the Writ Jurisdiction of this Hon’ble court and has thus erred in
law in not appreciating that the respondent No.2 being a public authority stood on a completely different position that the ICICI Bank
(Bank involved in Chanda Kochar’s case) and hence the ratio of that case was utterly inapplicable in the case of the Appellant
herein.â€
3. Brief facts of the case as pleaded in the writ petition by the petitioner are that the appellant/writ petitioner was an employee of Respondent No.2-
Jammu & Kashmir Bank Ltd (for short ‘the Bank’) having been appointed as company secretary in the year 1998; that the appellant/writ
petitioner is instrumental in placing the Bank in the higher echelons of Banking Sector in India which has resulted the Bank becoming the first listed
company of J&K on both the Bombay Stock Exchange (BSE) and National Stock Exchange(NSE); that petitioner, in a span of more than 20 years
with Bank held various positions of Deputy General Manager (June 2006-April 2008), President (April 2008- September 2011), Executive President
(September 2011-October 2016) and was eventually appointed as Chairman & CEO on 06.10.2016 for a tenure period of three years; that on
20.09.2016, the candidature of the appellant/writ petitioner was proposed for the post of Chairman of the Bank by the Board of Directors of the Bank;
that on 30.09.2016, the RBI in terms of Section 35B of the Banking Regulation Act, 1949 selected and approved the appellant/writ petitioner as the
Chairman & CEO of the Bank with effect from 06.10.2016; that in terms of clause 69 of the Articles of Association of the Bank, the
Commissioner/Secretary, Finance Department appointed the appellant/writ petitioner as Government Director; that the Bank on 06.10.2016 after
taking note of approval of the RBI dated 30.09.2016 as well as approval from the Commissioner/Secretary, Finance Department dated 03.10.2016,
accorded approval to the appointment of the appellant/writ petitioner as Chairman & CEO of the Bank for a period of three years w.e.f. 06.10.2016;
that the appellant/writ petitioner was accorded a cumulative salary package of ₹66 lakhs per annum along with other perquisites, which were duly
approved by the RBI as well.
4. It was pleaded that as serving employee of the Bank and his employment with it was to continue till his superannuation in 2024, the pensionary
benefit accruing to the petitioner prior to his appointment as Chairman and CEO was continued as per Compensation Policy and the Pension Rules;
that the continuation of pensionary benefits due to the appellant/writ petitioner as Chairman & CEO was approved by the Board of Directors of the
Bank on 27.12.2018 and also by the RBI on 15.05.2019; that the appellant/writ petitioner as Chairman & CEO, brought laurels to the Bank by bagging
prestigious awards like ‘Outstanding Contribution through Innovative Initiatives in the Housing Sector under the Pradhan Mantri Awas Yojana
(Urban)â€, ‘SKOCH award in Banking and Finance (B&F) silver category’ for inclusive banking and inclusion in rural areas with establishment
of 35 easy payment units in the Himalayan District of Leh in J&K, ‘Top Banker’ Award for its outstanding performance under the Prime
Minister Employment Generation Programmer by the Minsitry of MSME, and the appellant/writ petitioner was also awarded the title of ‘Elite
Ambassador of the Institute of Company Secretaries of India-the Golden Memoir’.
5. Averred also was that for unknown reasons and abruptly, the respondent No.1 in arbitrary exercise of power vested under clause 69 (iii) of the
Articles of Association of the Bank issued Notification dated 08.06.2019, stopped the appellant/writ petitioner as Nominee Director of the respondent
No.1 and consequently removed him as Chairman & CEO of the Bank, and by the same communication, appointed respondent No.4 the interim
Chairman-cum-Managing Director of the Bank; that the appellant/writ petitioner made representation addressed to the Chief Secretary stating, inter
alia, that he had not reached the age of superannuation and that despite his termination as Chairman & CEO of the Bank, he substantively continued
to be in the employment and sought disbursal of his salary. In response thereto, vide communication dated 09.07.2019, the President Human
Resources Development Department of the Bank informed the appellant/writ petitioner that he is deemed to have retired from the services of the
Bank as Executive President w.e.f. 06.10.2016; that against this communication dated 09.07.2019, he field a representation on 12.07.2019 before the
Financial Commissioner, Finance Department, Government of J&K; that the appellant/writ petitioner is also stated to have served legal notice dated
23.12.2019, upon the respondents.
6. Averment was made that as he served legal notice to the respondents, the Anti Corruption Bureau (ACB) filed the charge sheets of the FIR
No.10/2019 for offences U/Ss 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, Svt. 2006 and Section 120-B RPC vide
Challan nos. 3 and 4 against the appellant/writ petitioner before the Court of Special Judge, Anti Corruption, Srinagar.
7. In the meanwhile, one Zubair Iqbal filed EMG-CM No.78-A/2020 and sought impleadment as party respondent in the writ petition. Vide order dated
29.05.2020, his application was allowed by the court impleading him as 5th respondent in the writ petition.
8. Thereafter, CM No.1961/2020 seeking amendment of the writ petition, was filed by the appellant/writ petitioner which was allowed on 19.09.2020,
wherein appellant/writ petitioner besides the prayers in the writ petition sought some additional prayers to the extent:
(i) A writ in the name of Certiorari or any other appropriate writ, order or direction of like nature quashing the impugned notice dated 08.06.2019 as
being illegal, arbitrary and unreasonable and being passed in utter violaton of the Banking Regulation Act and the Articles of Association of the
Respondent No.2 Bank and thus non-est and invalid in law;
(ii) A writ in the nature of Certiorari or any other appropriate writ, order or direction quashing the impugned communication dated 09.07.2019 as being
illegal, arbitrary and unreasonable and thus non-est and invalid in law;
(ii-a) Writ in the nature of Certiorari or any other appropriate writ quashing the impugned process initiated vide Advertisement Notices dated
27.03.2020 and 24.04.2020 for appointment against the non-existent post of Managing Director as well as the impugned appointment of the
Respondent No.5 as Managing Director of Respondent No.2 Bank be also issued in favour of the petitioner and against the Respondents.
(iii) A writ in the nature of Mandamus or any other appropriate writ, order or direction reinstating the petitioner as the Chairman and CEO of the
Respondent No.2-Bank in order to serve the remaining time of his tenure as Chairman and CEO of the Respondent No.2-Bank;
(iv) A writ in the nature of Mandamus or any other appropriate order or direction in the nature of writ of mandamus declaring the appointment of
Respondent No.4 as Chairman and CEO as illegal and unlawful being in violation of the Banking Regulation Act and the Articles of Association of the
Respondent No.2 Bank.
(v) In alternative to prayer (iv) (supra) a writ in the nature of Mandamus or any other appropriate writ order or direction commanding the Respondent
No.2 Bank to accommodate the petitioner at a Board Level Post in the Respondent No.2 Bank till his superannuation from the Respondent No.2-
Bank;
(v-a) Writ in the nature of Mandamus or any other appropriate Writ commanding/directing the Respondents in particular Respondents 2 to 4 to treat
the impugned process as well as the appointment of the Respondent No.5 to the post of Managing Director of the Respondent No.2 non-est in law
and to desist refrain and forbear from giving effect thereto and/or carrying into effect in any manner disregarding offending against the statutory
mandate contained in Section 35B(b) of the Banking Regulation Act, 1949, be also issued in favour of the petitioner and against the Respondents.
(vi) A writ, order or direction in the nature of Mandamus directing the Respondent No.2-Bank to forthwith release the monthly salary along with all
perquisites and benefits due and payable to the petitioner in law;â€
9. Pursuant to notices in the writ petition, respondents filed their respective replies. Respondent No.1 had raised a preliminary objection to the
maintainability of the writ petition, as the appointment of the petitioner as Chairman/CEO of the Bank was a contractual appointment and that no writ
petition can be filed for enforcement of a contractual relationship.
10. The respondents no.2 and 4 have also taken objection regarding the maintainability of the writ petition as the appointment of the petitioner was a
contractual appointment. It is further stated in their objections that the petitioner had the alternate remedy of filing statutory appeal under Section
10B(7) of the BR Act which he has not done; that the petitioner is involved in a criminal case registered vide FIR No.10/2019 involving serious
offences under Prevention of Corruption Act, relating to backdoor appointments made in the Bank; that the petitioner himself accepted the decision of
the Government and that of the Board regarding his removal from the position of Chairman/CEO of the Bank, and in consequence of that, he moved
application dated 09.07.2019 to the Chairman of the Bank and sought release of salary in his favour on the ground that prior to his appointment as
Director/Chairman and CEO of the Bank, he was holding the status and position of Executive President in the Bank; that having accepted the factual
and legal position, the petitioner applied for grant of terminal/retiral benefits vide his application dated 16.09.2019 and the petitioner has suppressed
these facts; that the petitioner has also applied for the post of Managing Director but he was not selected being unsuitable by the Screening
Committee and so he cannot challenge the appointment of respondent No.5 as Managing Director.
11. The respondent No.3, the RBI, in its reply besides raising the question of maintainability of the writ petition also stated that in terms of Section
10B(9) of the BR Act, notwithstanding anything contained in Section 10B, where a person appointed on a whole-time basis as Chairman of the Board
of Directors or the Managing Director dies or resigns or is by infirmity or otherwise rendered incapable of carrying out his duties or is absent on leave
or otherwise rendered incapable of carrying out his duties or is absent on leave or otherwise in circumstances not involving the vacation of his office,
the Banking Company may, with the approval of the RBI, make suitable arrangements for carrying out the duties of Chairman or Managing Director
for a total period not exceeding four months; there was no specific proposal before the RBI for approval of termination or appointment of the
Chairman and that respondent no.2 had sought approval of the RBI for an arrangement viz the interim CMD’s appointment. From a regulatory
perspective it was necessary for the RBI to ensure that the interests of the depositors banking company were safeguarded; that thus the proposal for
the appointment of an interim CMD was granted approval; that the RBI does not sit in judgment over the legality of actions taken by a banking
company in pursuance of its contracts with its employees.
12. Aggrieved of the communication dated 08.06.2019 stopping/removing the appellant/writ petitioner as Nominee Director of the respondent No.1
and consequently his removal as Chairman & CEO of the Bank; appointing respondent No.4 the interim Chairman-cum-Managing Director of the
Bank; of the communication dated 09.07.2019 informing the appellant/writ petitioner that he is deemed to have retired w.e.f. 06.10.2016, and the
subsequent reliefs as prayed for by the appellant/writ petitioner in the amended writ petition, fell for consideration of the Writ Court.
13. The Writ Court vide its judgment dated 11.11.2020 dismissed the writ petition of the appellant/writ petitioner, by observing that the writ petition
was not maintainable as in terms of Rule/Regulation 2(k) and 2(l) of the Pension Regulations, the appellant/writ petitioner is deemed to have retired
from the Service of the Bank w.e.f. 06.10.2016, therefore, his tenure as being the Chairman & CEO of the Bank is not governed by the Service Rules
of the Bank. It is also held by the learned Single Judge that any dispute sought to be raised by the appellant/writ petitioner in relation thereto could not
be gone into by this Court in its writ jurisdiction.
14. Aggrieved of the judgment and order of the Writ Court, the appellant/writ petitioner has approached this court by way of filing this intra-court
appeal, raising various grounds detailed in para 2 of this judgment.
15. Learned counsel for the appellant/petitioner, reiterating the assertions made in the writ petition/memorandum of appeal submits that the
appellant/petitioner was appointed as first qualified company secretary in the respondent no.2-Bank in the year 1998 and, as such, he had to serve till
his superannuation at the age of 60 years on 31.03.2024, i.e. in the span of more than 20 years with the respondent no.2-Bank, the appellant/petitioner
held various positions and was eventually appointed as Chairman and CEO on 06.10.2016 for a tenure period of three years; that the
appellant/petitioner on 20.09.2016 consequent upon the superannuation of the incumbent Chairman being a high ranking bank employee holding the
post of Executive President was proposed, based on his seniority and merit by the Board of Directors of the respondent No.2-Bank to hold the apex
position of the Chairman/CEO vide resolution dated 20.09.2016; that on 30.09.2016, the respondent no.3-RBI exercising supervisory control over the
respondent no.2-Bank in terms of Banking Regulation 1949 particularly Section 35B thereof responding to the communication dated 21.09.2016 issued
by respondent no.2-Bank approved the candidature of the appellant/petitioner as Chairman/CEO; that consequent upon the approval of the RBI for
the appointment of the appellant/petitioner as Chairman/CEO, the respondent no.1 Govt. of J&K appointed him on 03.10.2016, as a Government
Director in terms of Clause 69 of the Articles of Association of respondent no.2-Bank; that on 06.10.2016, the Board of Directors of the respondent
no.2-J&K Bank took note of the approval of RBI dated 30.09.2016 and the approval of respondent no.1-Govt. of UT of J&K dated 03.10.2016, and
accorded approval to the appointment of the appellant/petitioner as Chairman/CEO of the J&K Bank for a period of three years w.e.f. 06.10.2016; he
has further argued that the appellant/petitioner being a serving employee of the respondent no.2-Bank was to continue till his superannuation on
31.03.2024, the pensionary benefits accruing to him prior to his appointment as Chairman and CEO were continued as per the compensation policy
and the pension rules in vogue having been resolved specifically by the Board of Directors of respondent no.2-Bank on 27.12.2018 and also approved
by respondent RBI on 15.05.2019; that on 09.06.2019, the respondent no.1- Govt. of UT of J&K had withdrawn the candidature of the
appellant/petitioner as the Government nominee Director holding that the appellant/petitioner ceased to be Chairman/CEO of the J&K Bank.
16. Learned counsel for the appellant/petitioner has further argued that the power of removal of Chairman of a Banking Company is vested only in the
Board of Directors and not the respondent no.1 and that even that decision of removal if taken by the Board, is subject to the mandatory prior
approval of respondent no.3 under Section 35B of the Banking Regulations Act, 1949. He has further argued that the contention of the respondents
that the appellant/petitioner on his appointment as Chairman ceased to be an employee of the respondent no.2-J&K Bank and was deemed to have
retired on 09.06.2016 i.e. the date on which he was appointed as Chairman is patently false because the Pension Regulations have no relation,
whatsoever, with one’s service and the concept of deemed retirement has no application in case of the appellant/petitioner herein for the reason
that when an employee was elevated from a career level post to a Board level post only the time served by the employee at the career level post was
counted for the purpose of computing qualifying years under the said Regulations and the period served at the Board level post was ignored for the
purposes of computing qualifying years and the person for the said limited purpose was deemed to have retired.
17. In support of his arguments, learned counsel for the appellant/petitioner has relied upon a Notification dated 29.01.2013 issued by the Central
government clarifying the position and extending the pensionary benefits for combined service (career level post and board level post) to various
officers of the Nationalised Banks who were appointed as whole-time directors and Chairman for various banks. As such, the said benefit of
combined service was to run till superannuation of their services from the Bank. He has also drawn the attention of this court towards the
compensation policy of the Respondent No.2-Bank which provided that ‘Chairman and whole-time directors shall not be covered under pension
scheme unless whole-time directors have been appointed from amongst the service management and covered as regular employees of the Bank. Such
benefits however shall be available to whole-time directors only up to the time of normal superannuation and in case they are continued with beyond
retirement the pension benefits shall be culminated.’ He has further argued that the expression ‘whole-time directors’ is an expression
which includes all directors in whole-time employment of the Bank and includes both Chairman/Managing Director and Executive Directors of the
Banking Company in terms of Section 2(94) of Company’s Act 2013; that in case of appellant after his elevation as Chairman/CEO of the
respondent no.2-J&K Bank, the pensionary scheme with respect to the appellant herein was continued by virtue of Board resolution dated 27.12.2018,
that was further approved by respondent no.3-RBI on 15.05.2019 rendering the concept of deemed retirement wholly inapplicable and utterly
misplaced and misdirected in point of law.
18. He further argued that the respondent no.2-J&K Bank is a government Company and the State Government holds more than 68 per cent
shareholding in this Bank, as such, the law laid down in Chanda Kochar case by the Apex Court was not applicable to the case on hand as that was a
case of ICICI Bank which was a private bank. He has further argued that the learned Single Judge in his judgment has not rendered a finding as to
what happened to the contribution made by the appellant/petitioner for two years and 9 months pursuant to RBI approval towards his pension funds
and finally it was prayed that all the impugned orders in the petition be quashed while setting aside the judgment passed by the writ court with a
direction to reinstate the appellant/petitioner to the post in the respondent No.2-J&K Bank that he would have enjoyed if the impugned prejudicial
action were not taken against him and or reinstatement to the position in the service of respondent no.2-J&K bank as Executive President with all the
protection available in law.
19. Learned Advocate General assisted by Mr. Sajad Ashraf, GA appearing for respondent No.1, argued that since the respondent no.2-J&K Bank is
a Government Company and the respondent no.2-Govt. of UT of J&K holds more than 68% of shareholding in the Bank and all its affairs i.e.
awarding of contracts, employment of personnel, procurement of goods and services, recruitment against vacant posts, creation of new posts, have to
be done with the prior concurrence of respondent no.1 and that for appointment of a person as Chairman/CEO of the respondent no.2-J&K Bank, a
person is required to be a Director having been nominated by the Government; that the appellant/petitioner having been proposed by the government
was considered by the Board of Directors and approved by the respondent no.3-RBI was proposed to be Chairman/CEO of the respondent no.2-J&K
Bank, however, as a precondition for his appointment as Chairman/CEO the Government of J&K had nominated him as a Director, so as to be eligible
for being appointed as Chairman/CEO; it was argued that the appellant/petitioner while holding the post of Chairman/CEO of the respondent no.2-
J&K Bank was alleged to have committed malpractices and resorted to corruption in the appointment made to various posts in the J&K bank, as such,
a case was registered against him by the Anti-corruption Bureau of J&K and the respondent no.1-Govt. of UT of J&K taking note of the
malpractices by the appellant/petitioner took a conscious decision to revoke his nomination as Government nominee Director, therefore, a person who
is not a government nominee Director cannot serve as Chairman-cum-CEO of the respondent no.2-J&K Bank, as such, he was rightly removed from
his position of Chairman/CEO of the respondent no.2-J&K Bank on 08.06.2019.
20. Mr. Raina, learned AG, further argued that the appellant/petitioner, from the date he was appointed as Chairman/CEO from his earlier position as
Executive President of the respondent no.2-J&K Bank, was deemed to have retired from the service of the Bank and he cannot claim the benefits
under the J&K Bank Employees Pension Regulations 1995. He further argued that the writ court had decided the case in its right perspective and the
impugned judgment passed by learned Single Judge does not call for any interference by this court in this intra-court appeal and prayed for its
dismissal.
21. Mr. Sunil Sethi, Senior Advocte assisted by Mr. Parimoksh Seth, Advocate appearing for the respondent no.2-J&K Bank and respondent no.4-
R.K. Chibber, Chairman/CEO of the respondent no.2-J&K Bank argued that the appellant/petitioner has miserably failed to establish a case which
warrants interference by this court in the impugned judgment dated 11.11.2020 passed by the learned Single Judge which is perfectly legal and based
on true appreciation of all the legal aspects, as such, this appeal filed by the appellant/petitioner deserves to be out-rightly dismissed.
22. He has further argued that the cessation of appellant as Government nominee Director and his resultant removal as Chairman/CEO of the
respondent no.2-J&K Bank, was based on the registration of FIR No.10/2019 with Police Station Anti-Corruption Bureau, Kashmir, for offences
punishable under Section 5(1)(d) read with Section 5(2) of the J&K Prevention of Corruption Act, Svt. 2006 and Section 120-B RPC and that the
appellant/petitioner has been arraigned as accused no.1 in the charge sheets nos. 3 and 4 which have been presented by the Anti-Corruption Bureau,
Kashmir before the court of learned Special Judge Anti-Corruption Srinagar, as he had been found involved in backdoor appointments of Banking
Attendants/ Assistant Banking Associates in the J&K Bank. He has supported the observation of the learned Single Judge in para 59 of the impugned
judgment wherein it has been very categorically and specifically held that the nomination of the appellant/petitioner as director on the Board and his
subsequent appointment as Chairman-cum-Chief Executive Officer of the respondent no.2-J&K Bank was contractual in nature and not governed by
any statute or the service condition, ordinarily applicable to the employees of the J&K Bank; that the aid of law laid down in Chanda Deepak Kochar
v. ICICI Bank Ltd. wherein it has been held that the contractual duties are enforceable as matters of private law by ordinary contractual remedies
such as damages, injunction, specific performance and declaration; that the learned Single Judge has rightly held the writ petition not to be
maintainable and so far as the plea with regard to pensionary and retiral benefits in reference to the compensatory policy of the bank is concerned, it
was argued that the learned Single Judge in para 58 of the judgment had elaborately dealt with the matter; he has further argued that the learned
Single Judge has rightly held that the compensation policy and the rules of the bank in view of deemed retirement of the appellant/petitioner from his
service from the date he was elevated to the position of Chairman/CEO is not available to him and that any dispute with regard to pension regulations
in view of Chairman/CEO of the Bank not governed by the service rule of the Bank cannot be gone into under writ jurisdiction of the court; he has
finally argued that the appeal filed by the appellant/petitioner does not merit any consideration and is liable to be dismissed and prayed for rejection
thereof.
23. Mr. Nitin Parihar, learned counsel for the respondent no.3-RBI has argued that the issued involved in the instant appeal is with regard to disputed
questions of facts, arising out of a contractual obligation between a Banking Company and its employee, a matter in which no powers are vested with
the respondent no.3-RBI; he has argued that the Section 35B(1)(b) of the BR Act 1949 provides only the requirement of taking prior approval of the
RBI for appointment, reappointment etc of Chairman, whole-time director etc and does not regulate the service conditions, thus, it does not adjudicate
the rights of any person to be appointed as Chairman, whole-time director etc; that the grant of approval by the RBI does not mean that the action of
termination is valid in terms of the service dispute; he has further argued that in the present case, no such situation has arisen and therefore, Section
35B(1)(b) of the BR Act 1949 is not applicable in view of its elaborate discussion and analysis in the judgment passed by Hon’ble Bombay High
Court in Writ Petition (Lodg.) No.3315 of 2019 titled ‘Chanda Deepak Kochar v. ICICI Bank Ltd. & Anr.’, wherein it has been held that
proposal for approval under the said section is not scrutinized in the service of the contract. RBI does not uphold or adjudicate or decide the rights of
the parties, inter se, but only focuses on the consequences of the proposed action; the nature of employment of the previous CMD in the instant case
was in the nature of contract and the High Court is not the forum to adjudicate any alleged infraction of contractual rights; he has further argued that
this judgment dated 05.03.2020 of the Hon’ble Bombay High Court was challenged before the Hon’ble Supreme Court in SLP No.013651 of
2020 which was dismissed vide judgment dated 01.12.2020, refusing to interfere with the impugned judgment.
24. Mr. Parihar has further argued that the impugned judgment by the writ court which is in consonance with the law laid down dictum in the above
case upheld by the Hon’ble Supreme Court does not call for any interference by this court in this LPA; that the respondent no.3-RBI on
08.06.2019 was informed by respondent no.2-J&K Bank that the appellant/petitioner a nominee of the J&K Govt. on the Board of Directors of the
Bank, ceased to be a director w.e.f. June 8, 2019 vide Government of J&K order and that the Government had nominated respondent R K Chibber as
the Director on the Board of Directors of the Bank in place of the appellant/petitioner; and that the Board of Directors, had already appointed
respondent no.4, R. K. Chibber as the interim CMD subject to the approval of the RBI which was approved on 10.10.2019 in terms of Section 10 BB
of the BR Act; that as evident there was no proposal before RBI for approval of the termination of a CMD and as per the responsibilities entrusted to
RBI under the BR Act, it was necessary for it to ensure that the interest of the depositors / banking company were safeguarded and the actions of the
RBI were within this mandate and as mentioned it is not involved in sitting in judgment over an illegality of the action taken by a Banking Company in
pursuance of its contracts with its employees. Mr. Parihar finally argued that except this limited role of the RBI, the respondent RBI had no role with
regard to determination of the rights of an employee of a bank or of a contractual appointment to the highest post.
25. Heard, perused and considered.
26. The appellant/petitioner working as a senior functionary as Executive President in the J&K Bank Ltd. was proposed in the month of September
2016 by the Govt. of J&K who had a share of 68% in shareholding of the Bank, to be made as a government nominee Director, on the Board of
Directors of the respondent-J&K Bank which on the suggestion of the Govt. of J&K passed resolution No. 32 in its meeting held on 20.09.2016 and
formulated a panel of three candidates in order of preference for approval by the RBI as Chairman and CEO of the Bank w.e.f 06.10.2016 with
appellant/petitioner’s name figuring at serial no.1. Consequent upon the approval by the RBI, the appellant/petitioner was appointed as
Government director in pursuance of Article 69(i) of the Article of Association of Bank by Government of J&K vide Govt. Order No. 209-F of 2016
dated 03.10.2016, which was ratified by the board of a Bank vide Resolution No.1 and w.e.f 06.10.2016, he was appointed as Chairman and Chief
Executive Officer.
27. The appellant/petitioner on taking over as Chairman/CEO of the Bank, the Board of Director of the respondent no.2-J&K Bank in its meeting held
on 27.12.2018 passed a resolution according approval to the payment of pensionary/retiral benefits to the Chairman/CEO as per the provisions of
compensation policy of the Bank which was approved by the RBI on 15.05.2019 in terms of Section 35B of the Banking Regulations Act 1949 for
contribution towards the pension of the appellant/petitioner at 10% of his basic pay of Rs.4,29,000/- per month w.e.f 06.10.2016 in terms of para 4 of
the Bank’s Compensations Policy and the Pension Regulation Act 1995 with direction that the excess contribution made till then, be suitably
adjusted.
28. It is not out of place to mention that the appellant/petitioner was removed from the position of Chairman/CEO of the respondent no.2-J&K Bank
on 08.06.2019, when a case was registered against some functionaries of the respondent no.2-J&K Bank including the appellant/petitioner at Police
Station Anti-Corruption Bureau Kashmir, vide FIR No.10/2019 for offences under Sections 5(1)(d) read with Section 5(2) of the J&K Prevention of
Corruption Act, Svt. 2006 and Section 120-B RPC. On registration of this case, the Govt. of J&K through Finance Department on 08.06.2019
conveyed to the respondent no.2-J&K Bank the decision of the Government to the effect that the appellant/petitioner shall cease to be the Director on
the Board of Directors of the Bank and as a consequence shall no longer be Chairman-cum-Managing Director of the Board with further information
that respondent no.4 - R.K. Chibber is nominated as Director on the Board and may further be appointed as interim Chairman cum Managing Director
of the Board.
29. The appellant/petitioner in his petition before the writ court had assailed his removal as chairman/CEO of the respondent no.2-J&K Bank and also
the approval with regard to his deemed retirement on the date he was elevated from his position as Executive President a career level post, to the post
of Chairman-cum-CEO, a board level post and denial of pension thereafter. The appellant/petitioner also challenged the nomination of respondent
No.5-Zubair Iqbal as a Director of the Bank by the government apprehending that he may be elevated to the post of Chairman-cum-CEO of the
respondent no.2-J&K Bank.
30. The appellant/petitioner had been appointed as Chairman/CEO of the Bank on 06.10.2016 for a period of three years, meaning thereby, that he
had to continue as Chairman/CEO of the respondent no.2-J&K Bank up to 05.10.2019, however, before his contractual tenure of three years could be
over he was removed by the government of UT of J&K on 08.06.2019. Therefore, at the time of the disposal of the writ petition and also at the time
of filing of this intra court appeal, the matter has been rendered infructuous to the extent of his appointment as Chairman/CEO, which the
petitioner/appellant could not seek, beyond the contractual period of three years, ending on 05.10.2019.
31. The learned Single Judge on an elaborate discussion of the Banking Regulations has held that the positions of a Director or Chairman/CEO and
Managing Director are not promotional posts in the service of the Bank. So nomination of the appellant/petitioner as Government Director on the
Board on his appointment as Chairman/CEO of the Bank is not an elevation in the sense of promotion as construed in ordinary service parlance. While
referring to Sub Rules (k) and (l) of the Pension Regulations, and the conjoint reading of both these provisions which constitute the service conditions
of the employees of the Bank, makes it clear that date of retirement means the date on which an officer is deemed to have retired, which expression
in turn means cessation from the services of the Bank. Once the cessation from the service of the Bank takes place, there is no question of anybody,
much less of the petitioner continuing unabated and uninterrupted on the service of the Bank.
32. The writ court has rightly observed that once it is admitted by the appellant/petitioner that he is not covered under the pension regulations and,
rightly so, that automatically tantamount to admission, on his part, that he, in his capacity, has been Govt. Director on the board and Chairman/CEO
was not an employee of the Bank and in fact, the contention that the appellant/petitioner continued to be an employee of the Bank unabated and
uninterrupted, is self-defeating and contradictory.
33. The writ court has also rightly held that once the appellant/petitioner is retired w.e.f 06.10.2016, his pension culminated on that date as thereafter
he ceased to be an employee of the Bank and therefore would not be subject to its service conditions. The resolution of the Board of Directors dated
27.12.2018 is relevant to be considered which is reproduced for convenience.
“Resolved that the approval of the Board be and is hereby accorded to the payment of pensionary retiral benefits to the Chairman and
CEO as per the provisions of the Compensation Policy of the Bank and as per the Rules of the Bank from the date of appointment as
Chairman and CEO of the Bank and RBI be approached accordingly in this regard.â€
The name of the appellant/petitioner is not mentioned in the resolution and in any case neither the compensation policy nor the rules of the Bank allow
any such benefit on cessation to Chairman and CEO. It is not known under what circumstances the company secretary of the Bank had written
communication No.JKB/BS/F-01/2018-19/225 dated 16.04.2019 to the RBI seeking approval to the grant of pensionary retiral benefits in favour of the
appellant/petitioner in his capacity as being the Chairman/CEO of the Bank in view of clear stand taken by the respondent no.3-RBI that the RBI is
simply a regulatory /supervisory authority and has nothing to do with the Rules of the Bank or the service contract between bank and its appointees.
Therefore, the reliance by the appellant/petitioner on the approval granted by the RBI to the aforesaid resolution would not override the express
provision of the compensation policy and the Rules of the Bank, particularly, in the face of the positive stand taken by the respondents that Chairman
and whole-time director of the Bank are not covered under Pension Schemes and that is what clause (4) of the compensation policy provides. The
writ court while relying upon Chanda Deepak Kochar case (supra) decided by a Division Bench of the Bombay High Court and upheld by the Apex
Court, had held that the nomination of the petitioner as Director on the Board and his subsequent appointment as Chairman/CEO of the Bank was
contractual in nature and not governed by any statute or the service conditions ordinarily applicable to the employees of the Bank. The Bombay High
Court in the aforesaid case has held that contractual duties are enforceable as matter of private law by ordinary contractual remedies such as
damages, injunctions, specific performance and declaration. The writ court has rightly observed that a writ of mandamus is limited to enforcement of
public duty analyzing the prayers made by the appellant/petitioner in his writ petition with regard to his challenge to communication dated 08.06.2019
addressed by the Govt. of J&K through Finance Department of the State of J&K to the respondent no.2-J&K Bank through its company secretary
conveying the decision of the government taken by it in the exercise of powers under Article 69(m) of Article of Association of the Bank that the
appellant/petitioner shall cease to be director of the board of directors of the Bank and consequently be no longer the Chairman of the board of
directors of the Bank was held to be not maintainable and the remedy lies in the civil court.
34. The appellant/petitioner besides throwing challenge to his removal as Director nominated by the Government to the Board of Directors of the
Bank and as Chairman of the Board of Directors of the Bank has also claimed that he as Chairman/Chief Executive Officer of the Bank continued to
be in service of the Bank unabated and uninterrupted and therefore, so to be governed by the service conditions of the Bank and that since the Bank
the instrumentality of the State is amenable to the writ jurisdiction of this court, the appellant had in fact challenged the communication dated
09.07.2019, whereby he was conveyed that he is deemed to have retired from service of the Bank w.e.f 06.10.2016, the writ petition is maintainable.
35. Since the petitioner was deemed to have retired from the service of the Bank in terms of rule/regulation 2(k) and 2(l) of the pension regulations,
therefore, his tenure as being the Chairman/CEO of the respondent no.2-J&K Bank is not governed by the service rules of the Bank and any dispute
sought to be raised by him in relation thereto including the challenge to communication dated 09.07.2019 could not be gone into by this court. The writ
court, in our considered opinion in view of the matter, has rightly held the writ petition not to be maintainable to that extent. The other reliefs prayed
for by the appellant/petitioner in the writ petition being relatable to the two prayers for issuance of writ of certiorari to quash the two communications
dated 08.06.2019 and 09.07.2019, the petition for those reliefs as well would not survive before the court in its extraordinary writ jurisdiction. The writ
court, to the extent of the prayer of the petitioner for a direction to the respondents for release of all prerequisites and benefits due and payable to him
in law is concerned, while referring Chapter II of the Pension Regulations which contains the pension regulations and provide for the application and
eligibility of said Regulations, held that the appellant/petitioner, being in the service of the Bank till 06.10.2016 the date he was deemed to have retired
from the service of the Bank was eligible to pensionary benefits under the pension regulations in question in lieu of his service till 06.10.2016 and that
the pensionary benefits shall be considered to be granted in accordance with the applicable rules.
36. It has been brought to the notice of this court by the respondents which has not been disputed by the learned counsel for the appellant/petitioner
that after removal of the appellant/petitioner from the position of nominated Director on the Board of Directors and Chairman/CEO of the respondent-
J&K Bank, he had participated in another exercise for appointment of new Chairman/CEO of the Bank and had also applied after he being conveyed
his deemed retirement on the date he was appointed as Chairman/CEO of the respondent J&K Bank had applied for grant of pensionary benefits up
to that date. The appellant/petitioner has thus almost reconciled to what has been decided by the respondents Government of J&K and the
management of the J&K Bank.
37. The filing of writ petition and after judgment in the writ petition further challenge through the instant intra court appeal and also simultaneously
reconciling to the decisions taken by the respondents, is a classic display of the principle of “Approbate and Reprobate†on the part of
appellant/petitioner as this principle of “Approbate and Reprobate†if put into a common understanding means that a person shall not be allowed to
blow hot and cold in terms of his/her relationship/position vis-Ã -vis other person, who get related to said relationship/position. This principle aims to
mean, that an act of duality on the part of a person in his conduct/relationship vis-Ã -vis another person is nothing but dubious which no law can
cherish. The principle of “Approbate and Reprobate†has been well elucidated and explained by the Honâ€ble Apex Court in cases titled
“Nagubai Ammal & Ors Vs B. Shama Rao & Ors†reported in AIR 1956 SC 593, “Ram Vs B. Baijnath Singh & Ors†reported in AIR 1961
SC 1352, “Karam Kapahi & Ors Vs Lal Chand Public Charitable Trust & Ors†reported in AIR 2010 SC 2077, “The Rajasthan State
Industrial Development and Investment Corporation & Ors Vs Diamond and Gem Development Corporation Ltd. & Ors†reported in AIR 2013 SC
1241 and “Bhagwat Sharan (Dead) through L.Rs Vs Purushottam & Ors†reported in AIR 2020 SC 2361.
38. Having regard to the whole gamut of pleadings, rival submissions and the perusal of the record as well as the impugned judgment, we are of the
considered opinion that the learned Single Judge has decided the matter perfectly in consonance with law after a threadbare discussion on all aspects
of the case and has rightly held that the appointment of the appellant/petitioner as Chairman/CEO of the Bank was contractual in its nature and, as
such, there being no applicability of the service law, a writ is not maintainable to the extent of determining his removal as Government nominee
Director, Chairman/CEO of the respondent no.2-J&K Bank and his continuance from a career level post to board level post is not being amenable to
writ jurisdiction, is not maintainable and that no case is made out by the appellant/petitioner which warrants any interference in the impugned judgment
passed by the writ court which is upheld. As a consequence, the appeal is dismissed along with all connected application(s).
39. Interim direction, if any, shall stand vacated.