Reserve Bank of India & Ors Vs.
C.N. Sahasranaman & Ors [1986] INSC 98 (30 April 1986)
MUKHARJI, SABYASACHI (J) MUKHARJI, SABYASACHI
(J) PATHAK, R.S.
CITATION: 1986 AIR 1830 1986 SCR (2) 881 1986
SCC Supl. 143 1986 SCALE (1)939
CITATOR INFO:
RF 1987 SC1399 (20) D 1987 SC2086 (19,30)
ACT:
Centre-wise seniority and promotion through
written departmental examinor - Reserve Bank of India (Staff) Regulations 1948
- Administrative Circular No. 8 and 9 dated 13.5.1972, clause II(a)(i) of the
Scheme for Promotion - Staff Officers Grade II (Now designated Grade A) covered
under - Whether part of the scheme is violative of guarantee of equality before
law and equal opportunity in Public employment as enshrined in Article 14 and
16 of the Constitution - Industrial Disputes - Settlement by direct
negotiations or through collective bargaining value of.
HEADNOTE:
The Reserve Bank of India had its offices at
nearly 15 centres throughout India. The service conditions of the employees of
the Reserve Bank are governed by the Reserve Bank of India (Staff) Regulations,
1948 and Administrative orders passed from time to time and also by Industrial
Disputes Awards or Settlements by negotiations or settlement by collective
bargaining. In the Reserve Bank separrate departmentwise, Groupwise seniority
and promotion for cadres of officers and non-officers (Award Staff) was
prevalent from time to time.
In September 1962, the issue of maintenance
of combined seniority list at each centre for the purpose of promotions was
referred to the National industrial Tribunal presided over by Justice K.T.
Desai. The recommendations of the said Desai Award were approved by the Supreme
Court in All India Reserve Bank Employees' Association v. Reserve Bank of
India, [1966] 1 S.C.R. 25 @ 57 and Reserve Bank of India v. N.C. Paliwal &
Ors., [1977] 1 S.C.R. 377. In 1970, the Supervisory Staff in class I was
upgraded to staff officers in class I pursuant to the Memorandum of Settlement
dated 9th January, 1970 between 882 the Bank and the All India Supervisory
Staff Association, subject to certain conditions. The channel of promotion from
the post of clerk (Grade II) is staff officer (Grade A) and further from that
post to the staff officer (Grade B) and so on upto Grade F. Prior to 6th June
1970, oral interviews of all the eligible candidates were held for being
considered for promotion. Then Administrative circular No. 20 was introduced
for the first time for departmental promotions of clerk Grade I/(Assistant)
etc. to the post of Staff Officer Grade II (Sub-Accountants & Research
Superintendent) in all the groups. On 7th May 1972, the Bank took several steps
towards equalising promotional opportunities of employees by introducing the
Optee Scheme of 1965, the Optee Scheme of 1966 and finally by entering into a
Memorandum of Settlement dated 7th May 1972 with the Association accepting the
principle of maintenance of a combined seniority. On or about 7th May 1972, the
Bank formulated a "Scheme for Promotion; Staff Officer Grade II"
after giving full opportunity to the Association to make its suggestions. On
7th May 1972 the Bank and the Association further agreed by exchange of
correspondence that the ratio of direct recruits to the total strength of staff
officers Grade II shall be at 17.5% - 82.5%. On 13th May 1972, the Bank
introduced the Administrative Circular No. 8 on "Scheme for Promotion:
Staff Officers Grade II". On the same
day the Bank introduced simultaneously the Administrative Circular No. 9 on
"Scheme for combined Seniority List and Switch over from non-clerical to
clerical cadre with effect from 7th May 1972, Both the circulars are binding on
all employees of the Bank in view of the decision of the Supreme Court in N.C.
Paliwal's case. On May 22, 1974, the Bank
took a decision based on the recommendations of the cadre Review Committee
under the Chairmanship of Mr. Justice J.L. Naim and issued Administrative
circular No.15 to prepare a common seniority List and to provide for inter
group mobility at the lowest level of officers in Grade A with effect from 1st
January 1970. On or about 7th January 1978, the Bank took further decision,
based on the recommendations of two Committees headed by Mr. Justice Naim and
Mr. Justice Thareja respectively and issued Administrative Circular No. 8 to combine
the seniority of all officers in Grade 'B' and above with effect from 22nd May
1974 with a view to equalise opportunity for promotions among officers. Both
the circulars Nos. 15 of 1974 and 8 of 1978, were approved by the Supreme Court
in V.T. Khanzode & Ors. v. Reserve Bank of India & Anr., reported in
[1982] 2 S.C.C. 7.
883 % The respondents who were grade II
clerks working at Nagpur Reserve Bank ever since their employment which
commenced somewhere between 1960 and 1965 who were aggrieved by Part of Clause
II(a)(i) of the scheme for promotion - Staff Officers Grade II covered under
Administration Circular No. 8 challenged its validity averring that under the
new scheme chance to appear in the examination depended not on relative merits
but merely on the fortuitus circumstances, namely, the number of vacancies
occurring in a particular centre in a panel year which had no nexus with the
purpose of promotion viz. to secure efficient cadre of staff officers. The High
Court accepted the pleas of the respondents and by its order dated 19th March
1981 struck down that part of clause II(a)(i) of the scheme listed "Number
of candidates for the qualifying test". As a result no examination could
be held for panel years 1980-81, 1981- 82 and 1983-84. Hence the appeal by
special leave.
Allowing the appeal and approving the
modified scheme of 1984 as per the orders and directions of the Supreme Court
including holding a referendum, the Court, ^
HELD: 1. In service jurisprudence there
cannot be any service rule which would satisfy each and every employee and its
constitutionality has to be judged by considering whether it is fair,
reasonable and does justice to the majority of the employees and fortunes of
some individuals is not the touch-stone. Further, whether there has been denial
of equality of the view of promotion or any constitutional right infringed or
not cannot be judged, where interest of large number of people are concerned,
in the abstract. [909 D-E; B-C] Kamal Kanti Dutt & Ors. v. Union of India &
Ors., [1980] 3 S.C.R. 811 referred to.
2. Circular No. 9 is a counterpart of
Circular No. 8.
Circular No. 8 having been held valid, by the
Supreme Court Circular No. 9 must also follow to be good. Circular No. 9 cannot
stand in vaccum and in isolation. It is a step to the fulfilment of the object
to be achieved by Circular No. 8.
Viewed in that point of view and as a
feasibility and having regard to the factors and in regard to the history of
Reserve Bank employees, the scheme as modified by the Bank and as 884 accepted
by vast majority indeed an over willing majority of the workmen is a proper and
just scheme and does not suffer from the vice of article 14 or article 16 or
any other constitutional guarantees. [909 F-G]
3.1 Settlement of disputes by direct negotiations
or settlement through collective bargaining is always to be preferred for it is
best suited for indusrial peace which is the aim of legislation for settlement
of labour disputes.
[909 H; 910 A] New Standard Engineering Co.
Ltd. v. N.L. Abhyankar & Ors., [1978] 2 S.C.R. 798 and Tata Engineering
& Locomotive v. Their Workmen, [1982] 1 S.C.R. 929 referred to.
3.2 The reference held pursuant to the orders
of this Court dated 2nd May, 1984 undoubtedly indicates that majority of the
employees are in favour of acceptance of the modified settlement. In matters of
service conditions it is difficult to evolve as ideal set of norms governing
various conditions of services and in grey area where service rules operated,
if more than one view is possible without sacrificing either reasons or
commonsense the ultimate choice has necessarily to be conditioned by several
considerations ensuring justice to as many as possible and injustice to as few.
These principles however, significant do not authorise the majority of the
employees to trample upon the constitutional guarantees or rights of the
individuals or minority employees. Majority cannot thwart or barter away the
constitutional rights of the minorities. The constitutional guarantees are to
protect this very danger.
But in judging the content of the
constitutional rights, the entire perspective of the equality of opportunity
here and denial of equal right in public employment have to be viewed in a
fair, reasonable and just perspective. Viewed in that light, it is true there
may be individual instances exemplifying injustices by postponing or delaying
the chances of promotions of the contesting respondents yet that does not deny
them their constitutional right in its proper measure, and the considerations
that have weighed with the making of the modified scheme and in light of the
other considerations it must be observed that with whatever care and
objectivity or foresight any rule is framed, some hardship, inconvenience or
injustice might to result but the paramount consideration is the reconciliation
of the conflicting claims of two important 885 constituents of service - one
which brings fresh clerical employees and the other mature experience. There
has been a happy merger of these two considerations in the scheme proposed and
in that merger, no violation of the guaranteed rights of the opposing
respondents have occurred. [910 C-H;
911 A-B]
3.3 The promotion scheme having been evolved
after careful consideration and having been in operation ever since the inception
of the Bank with modification from time to time as a result of the negotiations
under the Industrial Disputes Act should not be modified drastically. In such
matters one should hasten slowly. [911 B-C]
4.1 The promotion on the basis of centrewise
seniority, in the instant case is constitutionally valid, inasmuch as the
appellant bank is an undertaking which comes within the Industrial Disputes
Act, 1947 and the class III employees are fully covered by the definition of
the term "workman" in section 2(s) of the said Act and one of the
principles normally applicable in fixing their terms and conditions of service
is industry-cum-region principle. [893 G-H] Ramachandra Shankar Deodhar &
Ors. v. State of Maharashtra & Ors., [1974] 2 S.C.R. 216 distinguished.
Hindustan Antibiotics v. Workmen, [1967] 1
S.C.R. 652 and All-India Reserve Bank Employees' Association v. Reserve Bank of
India, [1966] 1 S.C.R. referred to.
4.2 The integration of different cadres into
one cadre could not be said to involve any violation of the equality clause.
The right of promotion should not be confused with mere chance of promotion.
Though the right to be considered for promotion was a condition of service,
mere chances of promotion were not. It is clear therefore, that the chances of
promotion in some areas occur more often in smaller centres than in other
bigger centres like Bombay, Calcutta, Delhi but that is fortutious and would
not really affect the question, and violate articles 14 and 16 of the
Constitution. The justice of the case should be judged in conjunction with
other factors, the convenience, the future of the family etc. [899 G; 903 E-F]
886 Kamal Kanti Dutt & Ors. v. Union of India & Ors., [1980] 3 S.C.R.
811, at pages 841-842; Mohd. Shujat Ali v. Union of India, [1975] 1 S.C.R. 449
and Reserve Bank of India v. C.T. Dighe, [1982] 1 S.C.R. 107 at 121-122
referred to.
4.3 Regulation 31 of the Reserve Bank of
India (Staff) Regulations 1948 is subject to the condition that "unless in
any case it be otherwise distinctly provided." In the instant case, it has
been distinctly provided in the appointment letters as to where the class III
employees of the Bank are liable to serve. All appointment letters issued to
all staff members appointed in class III and below ever since the inception of
the Bank contained, identical or similar provision specifying the offices in
which of the Bank these employees are required to work. Therefore, there was
definite provision contrary to as contemplated by Regulation 31 of the Reserve
Bank of India (Staff) Regulation 1948 and therefore the general provisions of
Regulation 31 would not have any application. [904 B-C; D-E]
4.4 If an All-India cadre is enforced in
respect of Class III employees, it would result in injustice to all the
employees in that class at the injustice to all the employees in that class at
the smaller centres for a considerably long period of time leading to
industrial unrest. The result of applying the principles of an All- India
cadres for this class of employees would be that the senior-most in that whole
cadre All-India wise would alone have to be considered for promotion. In such a
case, for a considerable long time, only employees of the older offices namely,
Bombay, Nagpur, Madras, Calcutta and Delhi will have to be considered, they
being by far senior most among the All-India employees and such a consideration
and empanelling would continue for a very long time as the principal basis of
the settlement was not one of promotion on merit but rather an upgradation on
mere seniority, the only qualification being an examination to determine
fitness.
Once fitness was determined by the
examination the ranking in that examination did not come into play thereafter
and the successful candidates were again listed according to centrewise
seniority in the matter of upgradation and promoted as and when vacancies at
that centre occur. [905 A- E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
3234 of 1981.
887 From the Judgment and Order dated 19th
March, 1981 of the Bombay High Court in Writ Petition No. 2334 of 1980.
G.B. Pai and R.H. Parihar for the Appellant.
C.N. Sahasranaman in person, S.P. Sharma in
person, K.T.A. Anantha Raman, R. Basu Devan, A.K. Goel, Ajit Pudissery, M.S.
Gupta and V.J. Francis for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. In the Reserve Bank of India separate Departmentwise
and Groupwise seniority and promotion for cadres of Officers and non-Officers
(Award Staff) was prevalent. This would be apparent from the decision of this
Court in Reserve Bank of India v. N.C.
Paliwal & Ors., [1977] 1 S.C.R. 377 as
well as V.T. Khanzode and Ors. v. Reserve Bank of India and Anr., [1982] 2
S.C.C.
7.
In September, 1962, need was felt for
maintenance of combined seniority list at each centre for the purposes of
promotions recommended by National Industrial Tribunal presided over by Mr.
Justice K.T. Desai. The recommendations of the said Desai Award for centre-wise
combined seniority were approved by this Court in 1966. See in this connection
the observations in All India Reserve Bank Employees Associations v. Reserve
Bank of India, [1966] 1 S.C.R. 25 at 57 and Reserve Bank of India v. N.C.
Paliwal & Ors., (supra).
In 1970, the Supervisory Staff in Class I was
upgraded to Staff Officers in Class I pursuant to the Memorandum of Settlement
dated 9th January, 1970 between the Bank and the All India Supervisory Staff
Association, subject to certain conditions.
Administrative Circular No. 20 dated 6th
June, 1970 was issued on introduction of written examination for departmental
promotions of clerk Grade I/Assistants etc. to the post of Staff Officers Grade
II (Sub-Accountants and Research Superintendents) in all the groups. This
circular was not made operative.
888 On 7th May, 1972, the Bank took several
steps towards equalising promotional opportunities of employees by introducing
the Optee Scheme of 1965, the Optee Scheme of 1966 and finally by entering into
Memorandum of Settlement dated 7th May, 1972 with the Association accepting the
principle of maintenance of a combined seniority list at a centre. See in this
connection the observations in Reserve Bank of India v. N.C. Paliwal, (supra).
On or about 7th May, 1972, the Bank
formulated a Scheme for Promotions : Staff Officer Grade II' after giving full
opportunity to the Association to make its suggestions. On 7th May, 1972, the
Bank and the Association further agreed by exchange of correspondence that the
ratio of direct recruits to the total strength of Staff Officers Grade II
should be at 17.5% : 82.5%. Reference in this connection may be made to
Annexure II & III to the further Affidavit for the bank filed on 27th
August, 1982 and which are in the appeal Paper Book at p. 134 onwards.
On 13th May, 1972, the Bank introduced the
Administrative Circular No. 8 dated 13th May, 1972 on 'Scheme for Promotions -
Staff Officers Grade II' which is binding on all employees of the Bank. On the
same day the Bank introduced simultaneously the Administrative Circular No. 9
on 'Scheme for Combined Seniority List and switchover from non-clerical to
clerical cadre' with effect from 7th May, 1972 which is binding on all
employees of the Bank. The Constitutional valdity of this scheme was upheld by
this Court in Reserve Bank of India v. N.C. Paliwal (supra).
On 22nd May, 1974, the Bank took a decision,
based on the recommendations of the Cadre Review Committee under the
Chairmanship of Mr. Justice J.L. Nain and issued the Administrative Circular
No. 15 dated 22nd May, 1974 to prepare a common seniority list and to provide
for inter group mobility at the lowest level of officers in Grade 'A' with
effect from 1st January, 1970. See V.T. Khanzode & Ors.
v. Reserve Bank of India, (supra).
On or about 7th January, 1978, the Bank took
further decision, based on the recommendations of two Committees, one headed by
Mr. Justice Nain and another headed by Mr. Thareja, 889 and issued
Administrative Circular No. 8 dated 7th January, 1978 to combine the seniority
of all officers in Grade 'B' and above with effect from 22nd May, 1974 with a
view to equalise opportunity for promotions among officers. In this connection,
reference may also be made to V.T. Khanzode & Ors. v. Reserve Bank of India,
(supra).
This appeal arises from a decision of the
division bench of the Bombay High Court, Nagpur dated 19th March, 1981 whereby
it has struck down a part of clause (II)(a)(i) of 'the Scheme for Promotion -
Staff Officers Grade II (now designated Grade 'A') covered under the
Administration Circular No. 8 dated 13th May, 1972. It may be mentioned that as
a result no examination could be held for panel years 1980-81, 1981-82, and
1982-83.. The said clause was as follows :
"II. Number of candidates for the
qualifying test:- (a)(i) As estimate of the vacancies anticipated to occur in
each office during a 'panel year' i.e.
1st September to 31st August will be declared
by the Bank in advance and the number of candidates in that office to be called
for the test in order to fill those vacancies in that office will not exceed
twice the number of such vacancies subject to sub-clause....." It may be
mentioned that the decision was rendered in respect of a petition under Article
226 of the Constitution by three petitioners who were Grade II clerks working
at Nagpur Reserve Bank ever since their employment which commenced somewhere
between 1960 to 1965. The Reserve Bank has its offices at nearly 15 centres
throughout India. The service conditions were governed by the Reserve Bank of
India (Staff) Regulations, 1948 (hereinafter called "Regulations").
The High Court by its order which is under
appeal has set aside the impugned part of the scheme. It would be necessary to
refer to the said judgment briefly.
It may be mentioned that this judgment of the
High Court was delivered on 19th March, 1981. This Court granted special leave
against the said judgment on 4th December, 1981. Then 890 after that on 5th
March, 1982, this Court upheld the constitutional validity of the
Administrative Circular No. 8 dated 7th January, 1978 to combine the seniorty
of all Officers. See V.T. Khanzode & Ors. v. Reserve Bank of India,
(supra). This Court further directed on 29th July, 1982 that in the interest of
justice All India Reserve Bank Employees Class III Workmen Associations and All
India Reserve Bank Workers Organisation be added as the party-respondents, and
the appeal was heard for some time. Then this appeal after hearing was
adjourned and this Court directed the Reserve Bank to frame a new scheme for
promotion by order dated 20th October, 1982. On 13th December, 1982, the Bank
filed further affidavit, inter alia, annexing revised draft of clause II to the
Scheme for Promotion of Staff Officers Grade 'A' annexed to the Administrative
Circular No. 8. This was submitted for acceptance on behalf of the appellants
before us. The amendment was opposed by the opposing respondents by their
Affidavits-in-Opposition.
On 21st March, 1983, it is stated, that the
Bank entered into a settlement by exchange of letters with All India Reserve
Bank Employees Association which is recognised and representative Union of
Class III Workmen employees. The Bank thereafter filed a Rajoinder setting out
principles governing recruitment and promotion of Staff Officers Grade 'A' on
22nd February, 1983 including the modification of the existing scheme mutually
agreed between the Bank and the Association. On 2nd May, 1984, this Court
directed that the settlement between the Bank and the Association be referred
to Class III employees and opinion of the majority shall be taken on the basis
of referendum by secret ballot and the result of the referendum should be
communicated to this Court on 16th July, 1984 and the appeal to be heard
thereafter. The result of the referendum by secret ballot was filed by the Bank
by an Affidavit. The summary of the result of the referendum seems to be as
follows :
"PARTICULARS TOTAL VOTES PERCENTAGE TO
------------ ----------- -------------- CAST AGGREGATE NO.
OF VOTES CAST ----------- -----------
-------------- No. of votes accepting the Settlement 11,309 67.67% 891 No. of
votes not accepting the Settlement 5,277 31.58% No. of votes declared invalid
126 00.75% --------- --------- 16,712 100.00% ---------- ---------- Total number
of eligible voters : 18,953 Total votes polled :16,712 (88.18%)" The main
question which needs determination is whether part of the scheme mentioned
before introduced by the Reserve Bank of India is violative of guarantee of
equality before law and of equal opportunity in public employment as enshrined
in articles 14 and 16 of the Constitution. The High Court noted that the point
arose at the instance of three petitioners who were Grade II working at Nagpur
branch of Reserve Bank ever since their employment which commenced somewhere
between 1960 to 1965.
The Reserve Bank has its offices at nearly 15
centres throughout India. The channel of promotion from the post of Clerk
(Grade II) is Staff Officer (Grade A) and further from the post to the Staff
Officer (Grade B) and so on upto Grade F. Prior to 6th June, 1970, oral
interviews of all the eligible candidates were held for being considered for
promotion. Then Administration Circular No. 20 was issued introducing scheme of
Written Examination for the first time for giving departmental promotions. The
learned judges of the High Court were of the view that perhaps this was done to
introduce element of objectivity in the test. Candidates who passed the said
qualifying examination were included in the `fit' list and became eligible
being considered for promotion to the next higher post. The High Court was
concerned, as mentioned hereinbefore, with the said new scheme which is
introduced by Circular dated 13th May, 1972.
Analysing the said scheme, the High Court was
of the view that under the new scheme candidates from a particular centre
numbering twice the anticipated vacancies in that centre alone were eligible to
appear in the departmental 892 examination and consequently to qualify for
promotion. The grievance of the petitioners before the High Court was that
under the new scheme, chance to appear in the examination depended not on
relative merits but merely on the fortuitous circumstances, namely, the number
of vacancies occurring in a particular centre in a panel year. According to the
petitioners, this had no nexus with the prupose of promotion viz. to secure
efficient cadre of Staff Officers and therefore the scheme, according to the
petitioners, was bad in law. The High Court found considerable force in this
submission.
In the impugned judgment under appeal the
High Court relied on Ramchandra Shankar Deodhar & Ors. v. State of
Maharashtra & Ors., [1974] 2 S.C.R. 216. According to the High Court the
promotion on the basis of Centre-wise seniority was opposed to the said
decision of this Court.
There, the petitioners were Tahsildars in the
erstwhile State of Hyderabad. After the new State of Bombay was constituted
with territories drawn from various existing States including Hyderabad under
the States Reorganisation Act, 1956, equation of posts and determination of
inter se seniority was done by the Allocated Government Servants' (Absorption,
Seniority, Pay and Allowances) Rules, 1957.
Under these rules of 1957, the Government of
Bombay declared that the posts of Mamlatdar in the former State of Bombay
should be deemed to be equivalent to the posts of Tahsildar from the former
State of Hyderabad and the posts of Deputy Collector in the former State of
Bombay should be deemed to be equivalent to the posts of Deputy Collector
allocated from the former State of Hyderabad. The recruitment to the posts of
Deputy Collector was provided for by Rules of 30th July, 1959 (called 1959
Rules) according to which vacancies to the posts of Deputy Collector were to be
filled from three sources 50% by nomination on the basis of the result of
competitive examination; 25% by directly recruited Mamlatdars who have put in
at least seven years' service including the period spent on probation and the
remaining 25% by Mamlatdars promoted from the lower ranks in the revene
departments. The reservation of 25% in favour of directly recruited Mamlatdars
was made by the second proviso of rule (1) of the Rules. On 7th April, 1961 the
Government laid down the principles for regulating the preparation and revision
of select list of Mamlatdars/Tahsildars fit to be appointed. It was held by
this Court by a bench of five 893 learned judges that the second proviso to
rule (1) of the 1959 Rules was void as being violative of Article 16 of the
Constitution. This Court was of the view that the procedure for promotion to
the cadre of Deputy Collectors followed by the State Government was also
invalid on the ground that it denied equality of opportunity of promotion and
was therefore hit by Article 16 of the Constitution and hence the Government
resolution dated 7th April, 1961 was quashed.
What was done in the aforesaid case was to
have an integrated service of Mamlatdars for the purpose of promotions to
Deputy Collectors' grade which was admittedly a State-wise grade and that
promotion was on the basis of merit-cum-seniority. It was found that select
list based on merit and seniority Division-wise for promotion to higher grade,
viz. that of the Deputy Collector and these lists were liable to be varied from
time to time on periodical assessment of merits of the incumbents in that list,
and this Court was of the view that it might lead to injustice in that if
promotions were made from these lists Division- wise there was a possibility of
a less meritorious candidate with lesser seniority being promoted in preference
to a more meritorious candidate elsewhere. In the instant appeal it is
necessary to consider the question of promotions from the Centre-wise cadre to
an All India Cadre and not a State cadre. If, therefore, any analogy or
parallel has to be sought, then it must be from the All India cadre of the
Government of India service. It may be noted that in an All India Service
considerations other than merit on seniority have to be taken into account. In
the appellant Bank, the procedure is to give a qualifying test just to
ascertain the fitness for upgradation. In effect upgradation is really done on
the basis of seniority alone subject to fitness. In Deodhar's case, the
emphasis was rather on merit rating and the discrimination was implicit against
more meritorious candidates with higher seniority. But in the instant case the
appellant Bank is an undertaking which comes within the Industrial Disputes
Act, 1947 and the Class III employees are fully covered by the definition of
the term "workman" in section 2(s) of the said Act and one of the
principles normally applicable in fixing their terms and conditions of service
is the Industry cum region principle. It was stated by this Court in Hindustan
Antibiotics v. Workmen, [1967] 1 S.C.R. 652 that those principles should also
be 894 applied to State-run industries. The question whether the recruitment to
the lowest cadre of officers viz. Class A officers should be essentially from
Class III employees by promotion directly came up for consideration by this Court
in All-India Reserve Bank Employees' Association v. Reserve Bank of India,
[1966] 1 S.C.R. 25 and this Court held that a workman can raise a dispute on
such a point. It was in that context that a dispute was in fact raised and a
settlement under section 18(1) of the Industrial Disputes Act, 1947 was entered
into with the recognised union namely All India Bank Employees Association on
7th May, 1972, and the Administration Circular AC-9 and AC-8 dated 13th May,
1972 issued.
The High Court in the impugned judgment
proceeded on the basis that in fact the Class III employees of the Reserve Bank
of India belonged to an All India Cadre freely transferable from one place to
another. This aspect will be dealt with later on.
The division bench of the Bombay High Court
in the decision under appeal found that the ratio of the said decision in
Deodhar's case applied to the facts and circumstances of the instant case
because the cadre of clerk (Grade II) was all India cadre and not a local cadre
and secondly the post of Staff Officer (Group A) was a transferable one even in
practice was a common point.
Examination was also held on All-India basis.
Therefore, the High Court was of the view that even if it was held that the
petitioner's post was not of All India cadre, it would make no difference for
applicability of the principle laid down by this Court in Deodhar's case
(supra).
Promotion was included in the ambit of
equality of employment or appointment under article 16 of the Constitution,
according to the Bombay High Court. The Bombay High Court noted that there were
very junior officers like respondents 4 and 5 before the Bombay High Court who
had been posted then at Bhopal office. The petitioners before the Bombay High
Court were otherwise qualified and confirmed employees having 15 years service
to their credit and yet they did not get the chance to appear in examination as
employees and some respondents got their chances even though they were
appointees of 1980 and were not even confirmed.
The 895 respondents 4 and 5 before the Bombay
High Court were given the benefit not on the basis of comparative merit but
only on the basis, according to the Bombay High Court, of fortuitous event that
there had been vacancies in Bhopal office. Therefore, the basis on which the
scheme provided was promotion according to the vacancies in the zonal offices.
This circumstance of anticipated vacancies in the zonal offices has no nexus,
according to the Bombay High Court, to the merit-cum-seniority aspect. The
Bombay High Court also could not sustain the contention urged on behalf of the
appellant before us that the scheme was contractual and therefore was binding
on the petitioners. It was submitted that the petitioners before the Bombay
High Court and the three respondents before us were not members of the union
and were not parties to the agreement mentioned before. Moreover, according to
the High Court, by agreement one could not give up one's right. It was contended
before the High Court that the validity of the scheme had been upheld by the
decision of this Court in the case of Reserve Bank of India v. N.C. Paliwal
& Ors., (supra) where one part of the scheme came up for scrutiny, but
according to the High Court as this point was not the subject matter of
scrutiny, the said decision did not affect the position.
The main grounds on which the High court of
Bombay set aside the impugned portion of the circular which has been set out
hereinbefore was the position that the presumption that the staff from which
the promotion was made namely Class III employees, clerical and non-clerical
belonged to an All-India cadre and that promotion on the basis of centre-wise
seniority was opposed to the decision of this Court in the case of R.S. Deodhar
(supra).
The three petitioners in the court below
namely Shri C.N. Sahasranaman, Shri R. Raman and Shri S.D. Peshkar who were the
three staff members in the employment of the appellant Reserve Bank of India
are respondents to this appeal. Intervention has been permitted by the Court
during the course of the proceedings by the All India Reserve Bank Employees'
Association, the recognised union who represented the majority of the workmen,
and the All India Reserve Bank Workers Organisation who represented the
minority of the workers both of whom have been made party-respondents. The 896
other interveners are All-India Reserve Bank Employees Federation at Hyderabad
and All-India Reserve Bank Staff Association. The majority recognised union as
well as the last mentioned union are supporting the stand taken by the
appellant bank.
In order to appreciate the controversy in
this case, it was highlighted before us that since the inception of the bank,
separate department-wise and group-wise seniority for promotion to the cadre of
officers and non-officers were maintained by the bank.
In 1972, following with recognised union, a
combined seniority list was maintained as a result of the settlement and the
two circulars A.C. Nos. 8 and 9 both dated 13th May, 1972. These are two
annexures being Annexures 'A' and 'B' to the special leave petition to this
Court which are in the Paper Book of this appeal. Annexure 'A' deals with the
scheme for combined seniority list and switchover from non- clerical to
clerical cadre. It is not necessary to set out in extenso the detailed scheme.
In this scheme all employees in Class III non-clerical cadre substantively in
the categories that have been listed as groups I, III, IV and V in the annexure
who were graduates or had passed both parts of Institute of Bankers Examination
would be eligible to exercise an option in accordance with sub-clause (a) or
(b) of clause 2 to be transferred, automatically and without any screening, to
posts in the clercial cadre and also to vacant and other posts than purely stop
gap or short term nature, subject to sub-clause (b) mentioned in the scheme.
Combined seniority scheme introduced by the Reserve Bank to equalise
opportunity of confirmation and promotion of class under the optee scheme came
up for consideration by this Court in Reserve Bank of India v. N.C. Paliwal
& Ors., (supra). There the Court noted that at every centre of the Reserve
Bank of India, there were five departments, the General Department and four
Specialised Departments. There was a separate seniority list for the employees
in each Department at each centre and confirmation and promotion of employees
was only in the vacancies arising within their Department at each centre. There
were two grades of clerks in each Department, namely, Grade I and Grade II. The
pay scales of Grade I and Grade II clerks in all the 897 departments were the
same and their conditions of service were also identical. There was automatic
promotion from Grade II to Grade I. It is not necessary to set out in details
the consequences. But it may be mentioned that this optee scheme gave rise to
dissatisfaction amongst the employees in the General Department and they
claimed equal opportunities for having combined seniority but justified a separate
seniority list on the ground that work in each Department was of a special
nature and their interchangeability was undesirable and hard to achieve. As a
result of the recommendations of the National Tribunal, however, the Reserve
Bank introduced the optee scheme 1965 as a first step towards equalisation of
opportunity. Under the scheme, the option to go over to the specialised
Department was confined to confirmed Grade II clerks and officiating Grade I
class in the general department. If he exercised option, he was eligible to be
selected. If he was selected, he would be entitled to be absorbed only as Grade
II clerk in one of the specialised departments with the result that if he was
an officiating Grade I in the General Department at the time of the exercise of
the option, he would lose the benefit of officiation in Grade I in the general
department as also the monetary benefit of Rs. 15.
His seniority in the cadre of Grade II clerks
in the specialised department in which he was absorbed would be determined on
the basis of his length of service calculated from the date of his recruitment
if he was a graduate when he joined service, or from the date of his graduation
if he became a graduate whilst in service.
The petitioners in that case and some others were,
at the time of introduction of the Optee Scheme, confirmed Grade II clerks in
the general department and some of them were officiating in the general
department as Grade I clerks. They exercised the option under the Optee Scheme
and were absorbed substantively as confirmed Grade II clerks in one or the
other of the specialised departments. The clerks, other than the petitioners
were, in due course, in order of seniority, promoted as officiating Grade I
clerks in their respective specialised departments. But before the turn of the
petitioners for promotion came, a new Scheme was introduced on 13th May, 1972
as a result of continuous agitation by the employees for full equalisation of
opportunities between the general department and the specialised departments.
The 898 scheme was known as the Combined Seniority Scheme, and it superseded
the Optee Scheme. It consisted of two parts as mentioned hereinbefore. One part
provided for the integration of the clerical staff of the General Department
with the clerical staff of the Specialised Departments, this is annexure 'A' of
the present Paper Book and the other which is annexure 'B' in the present Paper
Book for the integration of the non-clerical staff with the clerical staff in
all the Departments. The Combinted Seniority Scheme gave an option to the
non-clerical employees to be transferred to posts in the clerical cadre, but in
the interest of efficiency, prescribed a qualification that only those
employees in non-clerical cadre would be transferred who were either graduates
or had passed both parts of Institute of Bankers' Examination. For determining
their seniority vis-a-vis those in the clerical cadre, the Combinted Seniority
Scheme adopted the rule that 1/3 of their total non-clerical service until 7th
May, 1972 (the date on which agreement was reached at between the Bank and its
employees on the terms of the Combined Seniority Scheme) or the date of
acquiring the qualification should be taken into account.
Allowing the appeal from the High Court and
upholding the validity of the Combined Seniority Scheme, this Court held that
assuming that the Reserve Bank was State under article 12 of the Constitution
and therefore, subject to articles 14 and 16 of the Constitution, by the mere
introduction of the Optee Scheme, no promise or assurance could be spelt out on
the part of the Bank not to take any steps towards integration of other
employees not covered by the Optee Scheme. The Reserve Bank, could not, on any
principle of law or by any process of implication, be held bound to hold its
hands in the matter of further integration, until the petitioners were promoted
in the Specialised Departments. The only object of the Optee Scheme was to
equalise the promotional opportunities of Grade II clerks in the General Department
with those of Grade II clerks in the Specialised Departments by giving an
option to the former to be absorbed in the latter. The object was carried out
as soon as the petitioners and other Grade II clerks in the General Departent
opted to be transferred to the Specialised Departments. Then they became Grade
II clerks in the specialised departments having the same promotional
opportunities as the original Grade II clerks in the 899 specialised
departments. There was no assurance given by the Bank that the promotional
opportunities available to Grade II clerks in the Specialised Departments would
not be diminished. This Court in the said decision was of the view that the
Combined Seniority Scheme did not affect the promotional opportunities of all
Grade II clerks in the Specialised Departments, irrespective of whether they
were original or transferee Grade II clerks. It did not discriminate between
transferee Grade II clerks and original Grade II clerks. There was no breach of
the principle that the promotional opportunities of transferee Grade II clerks
should be equal to those of original Grade II clerks. The fact that some of the
Grade II clerks, junior to the petitioners, had become Grade I clerks in the
general departments, and so could be equated only with Grade I clerks in the
specialised departments was a wholly fortuitous result, according to this
Court. This Court noted that it might cause heart-burning amongst the
petitioners that they were still continuing to be Grade II clerks but whenever services
were integrated, some hardship was bound to result as a necessary consequence
of integration. This Court further held that Reserve Bank did not undertake
that it would not take any steps for bringing about total integration of the
clerical services until all the transferee Grade II clerks were promoted. The
Bank was entitled to introduce the Combined Seniority Scheme at any time it
thought fit and its validity could not be assailed on the ground that it was
introduced at a time when some of the transferee Grade II clerks still remained
to be promoted and so was discriminatory against them. The fact that some
transferee Grade II clerks had already obtained promotion as Grade I clerks in
the Specialised Departments by the time the Cabinet Seniority Scheme was
introduced, was all part of the exigencies of service and in law no grievance
could be made against it.
The integration of different cadres into one
cadre could not be said to involve any violation of the equality clause,
according to this Court. Therefore, the first part of the scheme for
combination stands affirmed by this Court in N.C. Paliwal's case (supra).
It may be mentioned that it is the case of
the Bank that the settlement and the circulars namely Circulars Nos.
8 and 9 referred to hereinbefore both dated
13th July, 1973 were the 900 culmination of a long process of negotiation and
assessment by the bank. Reference was made to the observations in the Award of
the National Tribunal presided over by Justice K.T. Desai. Indeed, this court referred
to the said decision of Justice K.T. Desai at page 382 and quoted from the said
report. Justice Desai had observed that it was desirable when it was possible,
without detriment to the Bank and without affecting the efficiency, to group
employees in a particular category serving in different departments at one
Centre together for the purpose of being considered for promotion that a common
seniority list of such employees should be maintained. The same would result in
opening up equal avenues of promotion for a large number of employees and there
would be lesser sense of frustration and greater peace of mind among the
employees. These observations of the National Tribunal were also approved by
this Court in All India Bank Employees Association v. Reserve Bank of India,
[1966] 1 S.C.R. 25 at 57.
In Reserve Bank of India v. N.C. Paliwal
& Ors., (supra), at page 385 of the report, it was observed, inter alia, as
follows:
"The Association continued to agitate
for acceptance of its demand and ultimately, as a result of negotiations, an
agreement dated 7th May, 1972 was arrived at between the Reserve Bank and the
Association by which the demand of the Association was substantially conceded
and the principle of a combined seniority list was accepted by the Reserve
Bank. The petitioners and some other employees were, however, not members of
the Association and they refused to accept the terms of this agreement and
hence the Reserve Bank issued a Circular dated 13th May, 1972 introducing a
Scheme for combined seniority list and switched over from non-clerical to
clerical cadre with effect from 7th May, 1972. This Scheme was substantially in
the same terms as the agreement dated 7th May, 1972 and we shall hereafter, for
the sake of convenience, refer to this Scheme as the Combined Seniority Scheme.
901 It may be mentioned as was placed before
us that before a combined list at the centre was introduced, the provision was
based on department-wise seniority at each centre and the working of the
Reserve Bank department-wise had been explained in the Paliwal's case by this
Court at pages 380 and 381 of the report. It may be mentioned that the Circular
AC-9 dated 13th May, 1972 which was issued as mentioned before following the
statutory settlement dated the 7th May, 1972 under section 18(1) of the Industrial
Disputes Act, 194
7 was upheld in Paliwal's case at page
380-382. This Circular was not challenged before the Bombay High Court.
The resulting position is that the
centre-wise seniority is the established position and whatever promotions have
to be effected must be based on the centre-wise seniority, according to the
appellant. The other part of the Circular i.e. Circular AC-8 dated 13th May,
1972 only laid down certain procedural aspects of promotion from clerical to
non-clerical (Officer cadre) and even if any part of Circular AC-8 was set
aside, it would not substantially affect the stand of the appellant Bank that
the promotions are and would be made on the basis of combined seniority. It is
the case of the Bank that the principle of centre-wise seniority was evolved
after considerable discussion and debate with all the concerned interests, viz.
who were represented by the recognised union, i.e, the All-India Reserve Bank
Employees' Association and all the view points, according to the Bank, were
considered by the National Tribunal and this Court had, as mentioned
hereinbefore, in the two decisions on two different occasions, upheld the
validity of the combined seniority scheme; namely All India Reserve Bank
Employees' Association v. Reserve Bank of India, at page 57 and Reserve Bank of
India v. N.C. Paliwal, (supra) at pages 380-382.
Indeed in the last mentioned case at page
394, the validity of the combined seniority list has been subsequently upheld
by this Court.
The controversy in this appeal lies within a
narrow area but it has been urged against a vast compass and necessarily would
require examination of some aspects which are strictly not germane to the
present issue.
It has to be borne in mind as has been
mentioned herein- 902 before that A.C. 9 dated 13th May, 1972 has received the
acceptance and approval of this case in Paliwal's case and A.C. 9 and A.C. 8
form an integral part of the promotion and regulation of the employment of the
staff.
It was further emphasised from the point of
view of justice and fairness that for a large majority of employees of the
Bank, the maintenance of centre-wise seniority was essential. If Class III
clerical and non-clerical staff are treated as an All-India cadre, both the
employees as well as the Bank would find themselves in a difficult position
because the employees will render themselves to be freely transferable from one
area to another and particularly for those employees who are being transferred
outside Bombay, Calcutta and Delhi, may find it extremely difficult, according
to the Bank, to get housing accommodation (as the Bank woud not be in a
position to offer housing accommodation to all its employees). In such a
situation, it was submitted, it would become a problem of discipline for
enforcement of transfer made if the same is refused by the employees. It was,
therefore, in those circumstances that taking a pragmatic view the Bank had so
far not insisted on establishing an All-India cadre as far as the non-officer
staff was concerned. To add to the problem of accommodation, there would be the
problem of children's education at the new centres. The integration of various
centre-wise grades into one All-India grade would also pose considerable
administrative problems.
In V.T. Khanzode v. Reserve Bank of India,
(supra), it was noted that the private interest of employees of public undertakings
should not override public interest and an effort had to be made to harmonize
the two considerations.
No scheme governing service matters could be
foolproof and some section or the other of employees was bound to feel
aggrieved on the score of its expectations being falsified or remaining to be
fulfilled. Arbitrariness, irrationality, perversity and mala fide will, of
course, render any scheme unconstitutional but the fact that the scheme does no
satisfy the expectations of every employee was no evidence of these. It was
further observed that the contentions of variations of the service rules had to
be judged in the light of the historical data governing the constitution and
Management of the Services under Reserve Bank of India from time to time.
Without an 903 awareness of the history leading to the events which the
petitioners have challenged as unconstitutional, it would not be possible
either to apprciate the position or to provide an answer to it. These
observations were made in connection with the evaluation of integrated
seniority list for the officers Grade B and above.
In Kamal Kanti Dutt & Ors. v. Union of
India & Ors., [1980] 3 S.C.R. 811, at pages 841-842 this Court emphasised
that in matters like formulation of seniority list where, in respect of the
rules of promotion, more than one view was possible and that a choice had to be
necessarily conditioned by several considerations ensuring justice to as many
as possible and injustice to as few, it was not safe to test the constitutionality
of service rule on the touch stone of fortunes of individuals.
This Court had also observed that the right
of promotion should not be confused with mere chance of promotion. Though the
right to be considered for promotion was a condition of service, mere chances
of promotion were not. See Mohd. shujat Ali v. Union of India, [1975] 1 S.C.R. 449.
See also in this connection the observations in R.S. Deodhar v. State of
Maharashtra, (supra) at p. 230 and Reserve Bank of India v. C.T. Dighe, [1982]
1 S.C.R. 107 at 121-122.
It is apparent, therefore, that the chances
of promotion in some areas occur more often in smaller centres than in other
bigger centres like Bombay, Calcutta, Delhi but that is fortutious and would
not really affect the question, and violate articles 14 and 16 of the
Constitution. The justice of the case should be judged in conjunction with
other factors, the convenience, the future of the family etc.
The High Court proceeded, inter alia, on the
basis that the fact that Class III employees of the Bank belonged to an
All-India cadre freely transferable from one place to another.
Regulation 31 of the Reserve Bank of India
(Staff) Regulations, 1948 which is in Chapter IV namely; Conduct, Disciplince
and Appeals, is as follows :
"Unless in any case it be otherwise
distinctly 904 provided, the whole time of an employee shall be at the disposal
of the Bank, and he shall serve the Bank in its business in such capacity and
at such place as he may from time to time be directed." Regulation 31 as
indicated is subject to the condition that 'unless in any case it be otherwise
distinctly provided'. In the instant case, it has been distinctly provided in
the appointment letters as to where the Class III employees of the Bank are
liable to serve. See for instance, the specimen copy at page 107 of the Paper
Book which clearly, inter alia, provides as follows :
"He/She is liable to be posted either as
Coin-Note Examiner Gr.II or as Clerk Gr.II in any of the department of the Bank
at Bombay (Fort) or Byculla Offices." All appointment letters issued to
all staff members appointed in Class III and below ever since the inception of
the Bank contained, according to the Bank, identical or similar provision
specifying the offices in which of the Bank these employees are required to
work. It appears, therefore, there was definite provision contrary to as
contemplated by Regulation 31 of the Reserve Bank of India, (Staff) Regulation
1948 and therefore the general provisions of Regulation 31 would not have any
application. In contrast, the appointment letters issued to the officers had
always invoked general provisions of Regulation 31 giving full power to the
management of the Bank to post or transfer the officers in any office situated
in India. For this purpose, specimen appointment letter to an officer in Grade
A may be referred to. See in this connection pages 98 to 108 of the paper book
wherein it is stated in (xi) as follows:
"Posting and liability for transfer:
You are liable to be posted in any of the
offices of the Bank and to work in any of its departments or the
departments/offices of its associate institutions as the Bank may decide. You
will also be liable for transfer to any place in India as the Bank may decide
from time to time without payment of any allowance other than travelling
allowance." 905 It was further submitted and it appears that there is good
deal of substance in this that if an All-India cadre is enforced in respect of
Class III employees, it would result in injustice to all the employees in that
class at the smaller centres for a considerably long period of time leading to
industrial unrest. The result of applying the principles of an All-India cadre
for this class of employees would be that the senior-most in that whole cadre
All-India- wise would alone have to be considered for promotion. In such a
case, for a considerable long time, only employees of the older offices,
namely, Bombay, Nagpur, Madras, Calcutta and Delhi will have to be considered,
they being by far senior-most among the All-India employees and such a
consideration and empanelling would continue for a very long time as the
principal basis of the settlement was not one of promotion on merit but rather
an upgradation on mere seniority, the only qualification being an examination
to determine fitness. Once fitness was determined by the examination, the
ranking in that examination did not come into play thereafter and the
successful candidates were again listed according to centre-wise seniority in
the matter of upgradation and promoted as and when vacancies at that centre
occur. It was submitted that the recruitment of Class III employees at the
lowest grade was made centre-wise by the Managers of the offices concerned and
not from one source at the centre as such recruitment would be administratively
not feasible, to be undertaken.
It has to be borne in mind in deciding the
controversy in this case that in the course of this litigation on or about 20th
October, 1982, this Court by an order suggested the appellant Bank that it
might frame a new scheme for promotion, removing as far as possible any
imbalances that might be existing in the prevailing scheme. The appellant Bank,
thereafter, made certain suggestions which were not acceptable to all the
unions and more particularly to the recognised union. In the circumstances, the
Bank could not proceed with the suggested scheme.
Thereafter, the officers of the appellant
Bank held discussions with the representatives of the recognised union viz.,
the All-India Reserve Bank Employees' Association, and further modified the
scheme agreed to under the settlement dated 7th May, 1972.
906 As a result of the discussion with the
employees of the Bank, certain decisions were taken regarding the principles
governing recruitment and promotion for staff officers Grade A. There are in
the affidavit affirmed on 22nd February, 1983 by Shri Pradeep Madhav Joshi, the
Joint Chief Officer in the Personnel Policy Department of the Reserve Bank of
India along with the letter dated 21st February, 1983.
It was stated therein that the principles
governing recruitment and promotion for Staff Officer Grade A evolved in 1972
be, subject to the approval of this Court, modified on the following terms;
"(i) 10% of the vacancies of Staff Officers Grade A. will be filled in
exclusively by direct recruitment. However, such of the members of the staff
who comply with the eligibility requirements as might be prescribed from time
to time for direct recruitment, subject to relaxation in respect of age
requirement as the Bank may decide, will be eligible to compete in the
selection test.
(ii) Of the remaining 90% of the vacancies,
75% thereof will be filled in on the basis of a written examination i.e.
qualifying test in accordance with the scheme
for promotions: Staff Officers Grade A annexed to Administrative Circular No.8
dated 13th many, 1972 subject to the conditions that no employee will be
admitted to the qualifying test at any centre unless he has put in a minimum
qualifying period of service of three years in clerical grade as on a notified
dated.
(iii) The residuary portion, i.e. 35% of the
90% of the vacancies or in other words 22-1/2% of the total vacancies to the
post of Staff Officers Grade A would be filled in on the basis of an All-India
Merit Test to be prescribed by the Bank in consulation with the Reserve Bank of
India Services Board ordinarly, and employee who had put in a minimum of 9
years' service in Class II would be eligible to take the test. If, however,
sufficient number of employees with 9 years' service were not available at any
point of time, the Bank might suitably reduce the conditions of qualifying
service so that candidate to the extent of at least thrice the number of
vacancies are available for the test.
Notwithstanding such reduction in qualifying
service necessitated in the circumstances indicated, in the case of
non-clerical staff who are non-graduates, they would, however, be eligible for
taking the 907 test only on completion of 9 years service. Successful
candidates would be empanelled in the central panel in order of their
comparative merits and they would be considered for posting in order of their
position in the central panel as, when and where, the vacancies to posts of
Staff Officer Grade A in any of the offices of the Bank might arise." The
appellant Bank addressed a letter to the Association incorporating the
aforesaid decision of the appellant Bank on the modification of principles
governing recruitment and promotion for Staff Officer Grade A and the
Association has, by its letter confirmed the same.
It was submitted on behalf of the Bank that
the modified scheme envisages appointment of a candidate for the post of Staff
Officer Grade A through holding three different test, viz. (i) qualifying test
on the basis of centre-wise seniority and estimation of vacancies of Staff
Officers Grade A for each centre, (ii) merit test for all employees with a
minimum length of service of 9 years on all-India basis. Successful candidates
who will be empanelled in the central panel in order of their comparative
merits would be considered for posting in order of their position in the
central panel, as, when and where the vacancies to the post of Staff Officers
Grade A in any of the offices of the Bank might arise; and (iii) Selection test
for direct recruitment of candidates for Staff Officer Grade A for inducting
fresh blood for Staff Officer Grade A which is the base level of officer and
first level of supervisory cadre. It was submitted on behalf of the Bank that
the modified scheme achieved just balance keeping in view the interest of the
employees as a class i.e. both of senior and experienced employees and junior
and qualified employees on the one hand and the interests of the Bank on the
other. It was further stated that earlier, 82-1/2% of the vacancies were
allotted to be filled on the centre-wise basis. Under the modified Scheme, the
percentage was brought down to 67-1/2. It was necessary to make gradual change
as the total change in the existing procedure would have created industrial
unrest and would have led to other imbalances in operation.
Further it was submitted that the modified
scheme provided that no employee would be admitted to the qualifying test at
any centre unless he has put in a minimum qualifying 908 period of service of
three years in clerical cadre as on a notified date. It was submitted on behalf
of the Bank that one of the factors that influenced the High Court in the
judgment under appeal was that raw junior employees from Bhopal Office were
eligible to appear for the qualifying test, as apparent from the decision under
appeal. It was submitted that with the modification, no employee who had put in
less than three years of service would be admitted to the qualifying test and
the grievance that even temporary and junior employees would become eligible
would no longer survive.
The correctness or otherwise of the decision
of the Bombay High Court in the light of the modified scheme has to be judged
from various angles.
On behalf of the opposing respondent, Shri
C.N. Sahasranaman made his submissions orally in person. He submitted that at
pages 296 to 299, 306, 307 and 310 of the Paper Book, the appellant had
admitted that the impugned scheme of promotions had led to serious imbalances
in opportunities for appearing at the examinations. With this admission, it was
urged by respondents appearing in person that the question of law raised by
them in their affidavit have been concluded by themselves and therefore they
could not have any grievances whatsoever against the impugned judgment of the
Bombay High Court. It was submitted that matters relating to the imbalances
contained by the impugned Circular No.8 had already been considered at length
by this Court and this Court had directed on 20th October, 1982 to formulate a new
policy removing the imbalances in the impugned policy.
It was submitted by the opposing respondents
that equality right of Class III employees which was an All-India Institution
would be affected even in the modified scheme suggested by the Bank. It was
urged that it would be destructive of the All-India stature of the Reserve Bank
of India.
The main grievance of the respondents was
that there was violation of the constitutional right and it will hamper
development of an All-India Institution and All-India cadre.
Regarding reference to the case of N.C.
Paliwal, it was submitted on behalf of the opposing respondents that this 909
Court had not struck down the impugned circular on the ground that it did not
ensure equality of chances of promotion but on the ground that the scheme did
not ensure equality of opportunity to be considered for promotion. The equality
of chances of promotion and the equality to be considered for promotion,
according to the respondents, are two different questions and the grievance of
the respondents was that there was denial of equality to be considered for
promotion.
Whether there has been denial of equality of
the view of promotion or any constitutional right infringed or not cannot be
judged, where interest of large number of people are concerned, in the
abstract. Vast majority, indeed the overwhelming majority of the workmen are in
favour of the scheme as evolved by the Bank as modified as it would be apparent
from the submissions urged on behalf of All-India Reserve Bank Employees'
Association impleaded as party- respondent in this appeal as well as All India
Reserve Bank Employees' Federation, Hyderabad. It has to be borne in mind that
in service jurisprudence there cannot be any service rule which would satisfy
each and every employee and its constitutionality has to be judged by
considering whether it is fair, reasonable and does justice to the majority of
the employees and fortunes of some individuals is not the touch- stone. See in
this connection the observations of this Court in Kamal Kanti Dutt & Ors.
v. Union of India and Ors., (supra).
Furthermore it appears to us that Circular
No.9 is a counterpart of Circular No.8. Circular No. 8 having been held valid,
Circular No. 9 must also follow to be good.
Circular No. 8 cannot stand in vacuum and in
isolation. It is a step to the fulfilment of the object to be achieved by
Circular No. 9. Viewed in that point of view and as a feasibility and having
regard to the factors and in regard to the history of Reserve Bank employees,
we are of the opinion that the scheme as modified by the Bank and as accepted
by vast majority of their employees is a proper and just scheme and does not
suffer from the vice of article 14 or article 16 or any other constitutional
guarantees.
It is well to bear in mind the fact that
settlement of disputes by direct negotiations or settlement through 910
collective bargaining is always to be preferred for it is best suited for
industrial peace which the aim of legislation for settlement of labour disputes.
See the observations in New Standard Engineering Co. Ltd. v. N.L. Abhyankar and
Ors., A.I.R. 1978 S.C. 982 at 984 = [1978] 2 S.C.R. 798. This view has again
been reiterated by this Court in Tata Engineering & Locomotive v. Their
Workmen, A.I.R. 1981 S.C. 2163 = [1982] 1 S.C.R. 929. The order of this Court
dated 2nd May, 1984 and the referendum and the result thereof have been set out
hereinbefore.
We may, however, note that about the proper
manner of holding this referendum, certain doubts were expressed at the time of
hearing of this appeal. The Referendum undoubtedly indicates that majority of
the employees are in favour of acceptance of the modified settlement. In
matters of service conditions, it is difficult to evolve as ideal set of norms
governing various conditions of services and in grey area where service rules
operated, if more than one view is possible without sacrificing either reasons
or common-sense, the ultimate choice has necessarily to be conditioned by
several considerations ensuring justice to as many as possible and injustice to
as few. See in this connection the observations in K.K. Dutta v. Union of India
(supra) at page 841. These principles, however significant, do not authorise
the majority of the employees to trample upon the constitutional guarantees or
rights of the individual or minority employees. Majority cannot thwart or
barter away the constitutional rights of the minorities. The constitutional
guarantees are to protect this very danger.
But in judging the content of the
constitutional rights, the entire perspective of the equality of opportunity
here and denial of equal right in public employment have to be viewed in a
fair, reasonable and just perspective. Viewed in that light, it is true, there
may be individual instances exemplifying injustice by postponing or delaying
the chances of promotions of the contesting respondents yet that does not deny
them their constitutional right in its proper measure, and the considerations
that have weighed with the making of the modified scheme and in the light of
the other considerations mentioned hereinbefore, we must observe that with
whatever care and objectivity or foresight any rule is framed, some hardship,
inconvenience or injustice might to result but the 911 paramount consideration
is the reconciliation of the conflicting claims of two important constituents
of service one which brings fresh clerical employees and the other mature
experience. There has been a happy merger of these two considerations in the
scheme proposed and in that merger, no violation of the guaranteed rights of
the opposing respondents have occurred.
It has further to be borne in mind that the
promotion scheme having been evolved after careful consideration and having
been in operation ever since the inception of the Bank with modification from
time to time as a result of the negotiations under the Industrial Disputes Act
should not be modified drastically. In such matters one should hasten slowly.
In the premises we affirm the scheme as
modified by the second modification referred to hereinbefore in the letter
dated 21st February, 1983 and as explained in the affidavit of Pradeep Madhav
Joshi filed on 22nd February,- 1983. We further direct that the adhoc
promotions made under the directions of this Court in terms of the Order dated 22nd May, 1984 be regularised. The opposing respondents have appeared in person and have
made submissions. They have made valuable contributions. The constitutionality
of a scheme or if there is a violation of a right can only be decided if it is
questioned.
In that view of the matter the opposing
respondents should be amply compensated. We award cost of Rs. 5000 jointly to
them or if they are appearing singly then singly.
Amounts already paid by the Bank should be
adjusted against the amount to be paid. If more amounts than Rs. 5000 have
already been paid then nothing need be refunded or paid. The decision of the
Bombay High Court is set aside. The appeal is allowed and the order of the
Bombay High Court substituted by the order mentioned hereinbefore.
Civil Misc. Petition No. 14834 of 1985 -
application for intervention and Civil Misc. Petition No. 14822 of 1985
application for impleading are allowed and are disposed of along with the above
order.
S.R. Appeal allowed.
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