National
Federation of S.B.I. & Ors Vs. Union
of India & Ors [1995] INSC 177 (10 March 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Sahai, R.M. (J) Sen, S.C. (J) B.P. Jeevan
Reddy, J.:
CITATION:
1995 AIR 1457 1995 SCC (3) 532 JT 1995 (3) 336 1995 SCALE (2)282
ACT:
HEAD NOTE:
1. The
precise nature and character of the concession provided to Scheduled Castes and
Scheduled Tribes in the matter of promotions within Class-I in the service of
the public sector banks falls for consideration in this batch of writ
petitions. The writ petitions are filed by As- sociations of Scheduled Castes'
and Scheduled Tribes' employees working in several public sector banks. The reliefs
sought for in all these writ petitions are broadly identical. For the sake of
convenience, we may refer to the reliefs sought for in Writ Petition (C) No.896
of 1990 filed by the National Federation of State Bank of India Scheduled
Castes/Scheduled Tribes Employees. They are
(a) to
issue a writ of mandamus directing the respondent (State Bank of India) to implement die reservation
policy by maintaining the roster system;
(b) to
direct the respondents (Union of India, State Bank of India and the Chairman of the Indian
Banks Association) to fill up the backlog of unfilled vacancies since 1978 by
applying the carry-forward rule in all grades and scales with consequential
benefits;
(c) to
restrain the second respondent (State Bank of India) from making any promotion
from Scale-I to Middle Management Scale-II and Middle Management Grade-III, upto
Scale-VII, without following the principle of reservation;
(d) to
grant promotion to Scheduled Castes/Scheduled Tribes employees/officers with
retrospective effect with conse- quential benefits of salaries and allowances;
and
(e) to
carry out the aforesaid directions within a prescribed time- frame.
2. For
a proper appreciation of the issues arising herein, it is necessary to refer to
the orders issued by the Govern- 338 ment of India on the subject of concessions to Scheduled Castes/Scheduled
Tribes employees in the matter of promo- tions within Class-I service (which
are to be filled by promotion) from time to time. Though the question that
ultimately falls for consideration lies in a short compass, a reference to
those orders and to decisions of this Court on the subject has become
necessary.
3. By
Office Memorandum No. 1/10/ 61-Estt.(D) dated November 8, 1963 issued by the
Ministry of Home Affairs, reservation at 12 1/2 per cent and five per cent of
the vacancies was provided for Scheduled Castes and Scheduled Tribes candidates
respectively in Class-III and Class-IV posts filled by promotion based on (i)
selection or (ii) the results of competitive examinations limited to
departmental candidates, in grades or services to which there was no direct
recruitment. The Memorandum stated that there would be no reservation for
Scheduled Castes/Scheduled Tribes in appointments made by promotion to a
Class-II or to a higher service or post, irrespective of the method of
appointment the aforesaid policy was revised and fresh orders issued in Office
Memorandum No.1/12/67-Estt.(C) dated 11th July, 1968 issued by the Ministry of
Home Affairs. This Memorandum provided for several matters of which it is
necessary to notice only the provision made under "(B) promotion by
selection method: (a) Class-I and II appointments". It pro- vided that in
promotion by selection inter alia from Class- II to the lowest rung category in
Class-I, the procedure prescribed therein shall be followed, viz, (i) in the
case of eligible Scheduled Caste and Scheduled Tribes candidates, the grading
given to them shall be upgraded by one stage.
This
concession shall, however, be confined to only twenty five per cent of the
total vacancies in a particular grade or post filled in a year; (ii)
"Those Scheduled Castes/Scheduled Tribes employees who are senior enough
in the zone of consideration so as to be within the number of vacancies for
which the Select List has to be drawn, should be included in the Select list,
if they are not considered unfit for promotion and should also be given one
grading higher than the grading otherwise assignable to them on the basis of
their record of service and their place in the Select List determined on the
basis of this higher categorisation".
4. The
orders in Memorandum dated July II, 1968 were supplemented by orders issued on March 26, 1970 which is the one which falls for
our consideration. Having regard to its crucial relevance, it would be
appropriate to set out the Office Memorandum dated March 26, 1970 in full:
"Ministry
of Home Affairs O.M.No. 1/9/ 69- Est(SCT), Dated 26th March, 1970.
Subject:-
Concessions to Scheduled Castes and Scheduled Tribes in posts filled by
promotion - Class-I Services/Posts ------------------ The question of
increasing the representation of Scheduled Castes and Scheduled Tribes
employees in Class-I services/ Posts under the Government of India has been
under the consideration for some time past. In this Ministry's O.M.No.1/12/
67-Est(O) dated 11th July, 1968, certain concessions have been provided to
Scheduled Castes and Scheduled Tribes, inter alia in the matter of promotion by
selection to the lowest rung or category in 339 Class-I. It has now been
decided that the following concessions and facilities will be provided to Scheduled
Castes and Scheduled Tribes officers for their promotions within Class-I also.
In
promotion `by selection to posts within Class-I, which carry an ultimate salary
of Rs.2250/- in the revised scale of pay per month, or less, the Scheduled
Castes/Scheduled Tribes officers, who are senior enough in the zone of
consideration for promotion so as to be within the number of vacancies for
which the select ha has to be drawn up, would be in- cluded in the list
provided they are not considered unfit for promotion. Their po- sition in the
select list would however be the same as assigned to them by, the Dopartmental
Promotion Committee on the basis of their record of service. They would not be
given for this purpose, the grading higher than the grading otherwise
assignable to them on the basis of their record of service.
In
order to improve the chances of Scheduled Castes/Scheduled Tribes officers for
selection to the higher categories of posts in Class-I, it has further been
decided that:
(i)Scheduled
Castes/Scheduled Tribes officers in Class-I services posts should be provided
with mom opportunities for institutional training and for attending
seminars/symposia/conferences. Advantage could in this connection be taken of
the training facilities available at the National Academy of Administration, Mussorie,
National Police Academy, Mount Abu, Indian Institute of Public Administration,
New Delhi, the Administrative Staff College, Hyderabad, etc.
and
(ii) It should be the special responsibility of the immediate superior officers
of die Scheduled Castes/ Scheduled Tribes officers in Class -I to give advice
and guidance to the latter to improve the quality of their work.
Ministries/Departments
under whom Scheduled Castes/Scheduled Tribes ClassI officers mught be serving
should ensure that these decisions are implemented with expedition.
Ministries/Departments
(or the Heads of Departments) under whom such officers mught be serving may
specially watch the progress of these officers so that all appropriate steps
are taken wherever necessary, to improve the efficiency of these officers for
the purpose of their selection to higher posts.
4. The
orders contained in paragraph-2 above take effect from the date of issue except
in respect of selections already made prior to the issue of these orders.
5.
Ministry of Finance, etc. art requested to bring the above decisions to the
notice of all concerned.
6. In
so far as persons serving in offices under the Comptroller and Auditor General
of India are concerned, separate orders will
issue in due course." (Emphasis added)
5. It
is necessary to notice the significant features of this Office Memorandum. They
are:
(a) this
Office Memoran- dum does not speak of reservation; it speaks of conccessions
and facilities being provided to Scheduled Castes/Scheduled Tribes;
(b)
whereas under the earlier Office Memorandum, a certain concession was provided
to Scheduled Castes/Sched- uled Tribes candidates in the matter of promotion by
selection in the lowed rung or category in Class-I under this memorandum
concessions and facilities were provided to Scheduled Castes/Scheduled Tribes
officers for their promotions within Class-I also. However, these concessions
340 and facilities were limited to posts within Class-I which carry an ultimate
salary of Rs.2250/- in the revised scale of pay per month or less. The nature
and character of concession provided by this Office Memorandum is slightly
different from the one provided by Office Memorandum dated July 11, 1968 for
promotion to the lowest rung or category in Class-I;
(c)
The concession provided to Scheduled Castes/ Scheduled Tribes officers is
this-, those Scheduled Castes/Scheduled Tribes officers who are senior enough
in the zone of consideration for promotion so as to be within the number of
vacancies for which the select list has to be drawn up, would be included in
the select list provided they arc not considered unfit for promotion. (It is
this formula, if we can call it one, which has given rise to controversy and
varying interpretations and upon which we have to pronounce - which aspect we
shall deal with a little later.);
(d) the
position of Scheduled Castes/Scheduled Tribes candidates so included in the
select list would, however, be the same as assigned to them by the Departmental
Promotion Committee on the basis of their record of service.
(e) for
the aforesaid purpose, the Scheduled Castes/Scheduled Tribes candidates will
not be given one grading higher than the grading otherwise assignable to them
on the basis of their record of service.
6. The
facilities provided in Para 3 of this Memorandum include
special training, advice and guidance. It is not necessary to refer to them in
detail. The said orders were to take, effect from the date of issue of the said
Memorandum but the promotions already made were to remain unaffected by it.
7. On December 23, 1974, Office Memorandum No. 1/10/74- Estt.(SCT)
was issued from the Department of Personnel, Training and Administrative
Reforms (addressed to all Ministries) on the subject of " concessions to
Scheduled Castes and Scheduled Tribes in posts filled by promotion by selection
- posts within Class I". This Memorandum merely reiterated the concession
contained in the Memorandum dated March 26, 1970 and requested the Ministry of
Finance and other ministries to bring the said decision to the notice of all
concerned.
8. On
December 31, 1977, the Ministry of Finance, Department of Economic Affairs
(Banking Division), Government of India, addressed a letter to all the National
Banks as well as to the State Bank of India and its subsidiary banks intimating
them that the, Ministry has since decided "to extend the scheme of
reservation in promotions also". The letter stated that according to the
Reserve Bank of India, it will be difficult to formulate
a scheme uniformly applicable to all the banks though the basic policy of
reservation can always be enunciated. The letter stated that Reserve Bank of India has already for- mulated a scheme
on the subject applicable to its employees.
While
enclosing a copy of the Reserve Bank of India-scheme, the public sector banks
were requested "to implement to Government's orders suitably in your
existing schemes of promotions with such procedural modifications as may be
necessary". It is necessary to point out that this letter refers to
"promotions in the various grades in the public banking system"
generally whereas the Office Memorandum dated March 26, 1970 deals specifically
with promotions within Class-I only Further, this letter (dated December 31, 1977)
does not refer 341 to or modify the orders issued in the earlier Memorandums
referred to above, which means that those orders remained unaffected.
9. On May 30, 1981, the Ministry of Finance,
Department of Economic Affairs (Banking Division), Government of India issued a
letter No.F. 1/45/78-SGT(B) addressed to Chairman and Managing Directors of
twenty Nationalised Banks as well as to the Chairman, State Bank of India and Managing Directors of seven
subsidiary banks of State Bank of India on the subject of "reservation for Scheduled Castes/Scheduled
Tribes in promotion". After inviting attention to the letter dated December 31, 1977, Office Memorandums dated March 26, 1970 and dated December 23, 1974, the letter stated: "(A)s per
the Government orders, there is no reservation for Scheduled Castes and
Scheduled Tribes in 'promotion by selection' within the officers cadre. But
certain concessions and facilities are to be provided to the Scheduled Castes
and Scheduled Tribes officers in order to improve their chances for selection
to the higher categories of posts in the officers cadre in accordance with the
orders contained in the aforesaid Office Memorandums of Ministry of Home
Affairs. It has been decided that the concessions. mentioned in Para-2 of MHA's
O.M.dated 26-3-70 would be, available to the SC/ST officers in Public Sector
Banks/Financial Institutions in 'Promotions by Selection' to posts within the
officers cadre upto scale- III. The copies of MHA's O.M. dated 26-3-1970 and DP & AR O.M. dated 23-12-74 are enclosed herewith". The Banks were
requested to implement the said directions.
10. By
letter dated November 7, 1983, (F.No. 10 1/1 1/83- SCT(B) from the Ministry of
Finance, Department of Economic Affairs (Banking Division), Government of India
the instructions issued in the letter dated May 30, 1981 were reiterated and
the formula contained in Para 2 of the Office Memorandum dated March 26, 1970
was explained by giving an illustration. The illustration reads thus:
"(T)o illustrate, if 200 vacancies arc to be filled in and 3 times the
number of vacancies is considered as falling within the 'zone of
consideration', then any SC/ST officer whose seniority falls within the first
200 will be eligible for promotion provided that he is not found unfit for
promotion". By another letter dated March 25, 1987, the Ministry of Finance,
Department of Economic Affairs (Banking Division), Government of India
reiterated the aforesaid directions.
11.
The last communication in the sequence is the Office Memorandum No.36012/6/83-Estt.(SCT)
dated November 1, 1990 issued by the Ministry of
Personnel, Public Grievances and Pensions (Department of Personnel and
Training), Ministries and Departments of Government of India including the
Ministry of Finance (Banking Division). This Office Memo- randum is clarificatory
in nature. It would be appropriate to read it here:
"OFFICE
MEMORANDUM
Subject:
Concessions to Scheduled Castes/Scheduled Tribes in posts filled by Government
of India addressed to all the ******************* The undersigned is directed
to refer to the O.M.No.1/9/69-Estt.(SCT) dated 342 26th March, 1970 as amended vide O.M. No. 1/10/74-Estt.(SCT) dated
23.12.1974 and O.M. No.36012/12/88-Estt.(SCT) dated 21.9.1988 on the above
mentioned subject (copy enclosed).
2.
Though in the O.M. cited above it has been clearly mentioned that in promotion
by selection within Class I (now Group A) to posts which carry an ultimate
salary of Rs.2000/- per month or less (since revised to Rs.5700/-), the
scheduled Castes/Scheduled Tribes will be given a concession namely "those
Scheduled Castes/Scheduled Tribes who are senior enough in the zone of
consideration for promotion so as to be within the number of vacancies for
which select list has to be draw n up, would be included in that list provided
they arc not considered unfit for promotion", doubts have been expressed
in certain quarters as to whether the concession given hereinabove is a
reservation or a concession.
3. It
is hereby clarified that in Promotion by selection within Group 'A' to posts
which carry an ultimate salary of Rs. 5700/- p.m. there is no reservation.
"
12. it
would be appropriate at this stage to refer to the letter dated May 9, 1980 from the Ministry of Finance, De- partment of
Economic Affairs (Banking Division), Government of India, addressed to the
Chairman, Indian Banks Associa- tion, Bombay explaining the meaning 0 certain expressions occurring in the Office
Memorandums referred to above. They arc to the following effect: though
according to the New Officers Service Regulations, salary includes basic pay
and DA, so far as reservations are concerned, i.e., for the purpose of
reservation, ""ultimate salary" is meant to convey the basic pay
only and does not include die variable DA. It was for this purpose that promotions
upto Scale-III have been covered which carries the scale upto Rs.2250/- which
is exclusive of DA" With respect to the expressions "zone of
consideration" and 'not found unfit", the following clarification was
made:
"Clarifications
have also been sought regarding the term "Zone of consideration" and
"Not found unfit". Zone of consideration is meant to cover all
candidates who satisfy the prescribed conditions which have been laid down for
being considered for promotion. This would mean that this zone of consideration
would be similarly applicable to the general as well as SC/ST candidates. As
regards On term "Not found unfit", it is clarified that this terms is
meant to convey that there is nothing adverse against the candidate."
13. It
may be noted that the scale of Rs. 2250/- mentioned in the Office Memorandum
dated March 26, 1970 was later revised to Rs.5700/-, as stated in Office
Memorandum dated November 1, 1990 referred to in the preceding para.
14.
The Ministry of Personnel, Public Grievances and Pensions (Department of
Personnel and Training), Government of India has been issuing a Brochure on the
subject of reservation for Scheduled Castes and Scheduled Tribes in services
from time to time. This Brochure sets out the reservations, concessions and
facilities provided to Scheduled Castes and Scheduled Tribes officers in
Government service from time to time in a condensed form besides set- ting out
the orders issued by the Government of India from time to time. Quite often,
the courts have been referring to this Brochure while referring to the
reservations concessions provided to the said categories. One such reference is
in Bihar State Harijan Kalyan Parishad v. Union 343 of India (1985 (2)
S.C.C.644). Para 9 of the Brochure, as extracted in
the said judgment, reads thus:
"In
promotions by selection to posts within Group 'A' which carry an ultimate
salary of Rs.2250 per month, or less, the Scheduled Caste/Scheduled Tribe
officers, who are senior enough in he zone of consideration for promotion so as
to be within the number of vacancies for which the select list has to be drawn
up, would be included in that list provided they are not considered unfit for
promotion. Their position in the select list would, however, be the same as
assigned to them by the Departmental Promotion Committee on the basis of their
record of service. They would not be given, for this purpose one grading higher
than the grading otherwise assignable to them on the basis of their record of
service. " (What is extracted is obviously a portion of Para 9 and not the whole of Para 9. The decision does not also mention from which
edition of the Brochure was it quoted.) 15.In 1987, the Government of India
issued the seventh edition of the said Brochure in which Para 9.2, corresponding to the one quoted above, reads as
follows:
"9.2
Promotion by selection method.
MHA OM No.1/9/69. Estt. (SCT) dated 26-3-70 and Deptt. of Personnel & A.R. O.M. No. 1/10/
74- Estt.(SCT) dated 23-12-74.
9.2
(a) Promotions by selection within NO. Group A (Class I).
In
promotions by selection to posts within Group A (Class I) which carry an
ultimate salary of Rs. 2,000/- per month, or less, (Rs.2,250 per months or less
in the revised scale) there is no reservation, but the Scheduled Castes and
Scheduled Tribes Officers, who arc senior enough in the zone of consideration
for promotion so as to be within the number of vacancies for which the select
list has been drawn up, would be included in that list provided they are not
considered unfit for promotion. Their position in the select list would,
however, be the same as assigned to them by the Departmental Promotion
Committee on the basis of their record of service. They would not be given for
this purpose, one grading higher than the grading otherwise assignable to them
on the basis of their record of service.
In
order to improve the chances of Scheduled Castes and Scheduled Tribes officers
for selection to the higher categories of posts in Group A (Class 1).
(i)
Scheduled Castes/Scheduled Tribes officers in Group A (Class 1) Services/posts
should be provided with more opportunities for institutional training and for
attending seminars/symposia/ conferences. Advantage would also be taken of the
training facilities available at the Lal Bahadur Shastri National Academy of
Administration, Mussoorie, National Police Academy, Hyderabad, Indian Institute of Public Administration, New Delhi, the
Administrative Staff College, Hyderabad etc.
and
(ii)It would be the special responsibility of the immediate superior 344 officers
of the Scheduled Castes/Scheduled Tribes officers in Class I to give advice and
guidance to the -latter to improve the quality of their work." (Emphasis
added)
16.
The only difference between Para 9.2 as quoted in Bihar State Harijan Kalyan Parishad
and the one contained in the seventh edition of the Brochure is the addition of
the words "there is no reservation" underlined by us, which are not
found in the version quoted in the said decision- A good amount of controversy
is raised with respect to this addition. In our opinion, the said controversy
is not real and is born of an insufficient appreciation of the manner in which
the Brochure is prepared by the Government of India.
As
stated above, the Brochure out the gist, the substance and the purport of the
various orders issued from time to time. If only one looks to the original
Office Memorandum instead of concentrating upon the Brochure, the entire con- troversy
turns out to be unreal. Insofar as promotions within Class-I are concerned we
are referring to promotions within Class- I alone for the reason that we are
concerned in this case with only those promotions - it is admitted by Sri Rajinder
Sachar, learned counsel for the petitioners as well as the learned counsel for
the Union of India and the Banks that there arc no other orders except those
referred to above; in particular, it is admitted, there is no order applying
the rule of reservation to the said promotions (within Class-1). In such a
situation, the appropriate course would be to refer to the Office Memorandums
issued by the Government of India particularly the Office Memorandum dated March 26, 1970 - rather than to the Brochure. As
we shall explain later, sub-paras (1) and (2) of Para 9 of the Brochure
represent the gist of Office Memorandums referred to above and are in no manner
different or inconsistent.
17. We
may now turn to the meaning and nature of the "concession" contained
in the Office Memorandum dated March 26, 1970.
We have already set out the significant features of the said concession
contained in Para 2 of Office Memorandum in Para
5 of this judgment. We shall now explain what exactly does the formula
mentioned under (c) in Paragraph 5 of our judgment mean? For the sake of con- venience,
we shall repeat the formula.In promotions by selection to posts within Class-I
.... the Scheduled Castes/Scheduled Tribes officers who are senior enough in
the zone of consideration for promotion so as to be within the number of
vacancies for which the select list has to be drawn up would be included in the
list provided they are not considered unfit for promotion". It is
unnecessary to reiterate that the said Office Memorandum does not provide for
reservation as contemplated by Article 16(4) of the Constitution of India; it
only provides for a concession which the State can always provide under Article
16 as explained in Indira Sawhney & Ors. etc. etc. v. Union of India & Ors. (1992 Suppl. (111) S.C.C.217).
The concession is evidently designed and intended to help the Scheduled
Castes/Scheduled Tribes officers obtain promotions which they may not otherwise
get Towards that purpose, it is provided that those Scheduled Castes/ Scheduled
Tribes officers who are Senior 345 enough in the zone of consideration so as to
be within the number of vacancies available shall be included in the select
list provided they are not considered unfit for promotion. 'The said formula
has been explained with reference to an illustration in the letter dated November 7, 1983, referred to above. Be that as it
may, we shall elaborate and explain it. Take a case where twenty vacancies
arise which have to be filled by promotion by selection; according to the
relevant rules, thrice the number of vacancies are to be considered - in other
words, a list of sixty eligible candidates has to be prepared who alone will be
considered for promotion to the said twenty posts, which list is but another
name for "the zone of consideration" referred to in the Office
Memorandum; (or- dinarily, this list is prepared on the basis of seniority-
cum-eligibility); if any Scheduled Castes/Scheduled Tribes officer happen to
fall within Serial No. 1 to 20 in the said list*, they shall be included in the
select list without further ado, i.e., without subjecting them to the process
of selection and without comparing their merit and grading with the merit and
grading of the other officers within the zone of consideration. But for the
said concession, it may be noted, these Scheduled Castes/Scheduled Tribes
officers may not get selected even though they may fall within Serial No. 1 to
20 in the zone of consideration for the reason that the candidates below Serial
No.20 may have a better record of service.and grading than them. Since the
promotion is on the basis of selection, the more meritorious (the officer
having better grading) will get selected notwithstand-
----------------------------------------------------------- * We shall refer to
the said list containing 60 officers - S.Nos. 1 to 60 - as the zone of
consideration.
ing
his position in the zone of consideration. It appears quite obvious that
candidates belonging to Scheduled Castes/ Scheduled Tribes were not getting
selected by following the normal procedure of selection and hence, the said
concession was provided. According to it, it is enough if a Scheduled
Castes/Scheduled Tribes candidate comes within Serial No.1 to 20 in the zone of
consideration in the illustration given above. He would be automatically
included in the select list, even though his grading on the basis of his record
and performance may be far inferior to the grading of the other officers below
Serial No.20 in the zone of consideration provided, of course, such Scheduled
Castes'/ Scheduled Tribes' officer is not found unfit for promotion. So far as
Scheduled Castes/Scheduled Tribes candidates below Serial No.20 in the zone of
consideration are concerned, they will, of course, be not entitled to any such
concession and, therefore, have to compete with other candidates within the
zone of consideration. It is equally clear that the O.C. candidates between
Serial No. 1 to 20 in the zone of consideration will not be entitled to the
aforesaid concession; they will have to compete with all others in the zone of
consideration (S.No. 1 to 60) for selection to the said vacancies. This, in
short, is the concession. Since it is only a concession and not a reservations
the several letters of the Ministry of Finance referred to above, viz., letters
dated May 30, 1981, November 7, 1983, March 25, 1987 and the clarificatory
Office Memorandum dated November 1, 1990 repeatedly say that while there is no
reservation for Scheduled Castes and Scheduled Tribes in this behalf (i.e., in
die matter of promotion by selection to posts within Class-I) a concession is
provided to them. It is because 346 of this circumstance again that Para 9.2 in
the seventh edition of the Brochure on the subject of reservation for Scheduled
Castes and Scheduled Tribes in services says that while there is no
reservation, the Scheduled Castes/Scheduled Tribes candidates are entitled to
the concession mentioned therein.
18.
Sri Rajinder Sachhar, learned counsel for the petitioners placed strong
reliance upon the decision in Bihar State Harijan Kalyan Parishad. Learned
counsel submitted that the said decision clearly lays down that the rule of
reservation does apply to the promotions concerned herein by virtue of Para 9
of the Brochure. According to the learned counsel, Para 9 of the Brochure and
the Memorandums aforesaid must be understood in the following manner: the
Government of India has prepared, published and communicated to all the
departments including Public Sector Banks the forty-point roster; the places
reserved for Scheduled Castes/Scheduled Tribes are clearly specified in the
said roster; the said Memorandums and Para 9 of the Brochure must be understood
in the context of and in the light of the said roster; if so understood, it
means that all the Scheduled Castes/Scheduled Tribes candidates who are within
the zone of consideration should automatically be appointed to the posts
reserved for them. The learned counsel pointed out that if the respondents'
contention is accepted, it may happen that all the available vacancies are
filled up by Scheduled Castes/Scheduled Tribes candidates, thus resulting in
100% reservation. In the illustration given hereinabove, he submitted, it may
happen in a given case that the Scheduled Castes/Schedule Tribes candidates arc
at Serial No. 1 to 2 - or at any rate, in a large number; then they will take
away all the available twenty vacancies or such large number. This too would
not be consistent with the principle underlying clauses (1) and (4) of Article
16 of the Constitution of India. As against this, stated the learned counsel,
the interpretation placed by him is not only reasonable but consistent with the
general reservation policy of the Government of India and serves to ensure the
vacancies reserved for Scheduled Castes/Scheduled Tribes to them, even though
in competition with open category candidates they may lag behind. In the original
Office Memorandum dated March 26, 1970, he pointed out, there are no words to
the effect "there is no reservation" which are found in Para 9.2 as
printed in the seventh edition of the Brochure. The introduction of the said
words in the seventh edition and in the letters dated May 3 0, 198 1, November
7, 1983, March 25, 1987 and the clarificatory O.M. dated November 1, 1990 is
unwarranted and unauthorised. Learned counsel submitted further that the
original Memorandum issued by the Ministry of Home Affairs must be followed and
cannot be amended or altered by the Ministry of Finance while purporting to
communicate the same to Public Sector Banks for implementation.
19. We
are unable to agree with the learned counsel. It is admitted on all hands that
so far as promotions within Class-I are concerned - with which alone the
Memorandum dated March 26, 1970 deals - there are no orders of the Government
of India applying the rule of reservation. We have referred hereinbefore to the
earlier Memorandum dated July 11, 1968 (which in turn refers to an yet earlier
Memorandum dated November 8, 1963). Those earlier Memorandums provide for reser-
347 vation in Classes-II, III and IV but not for promotion to Class-I and not
at any rate to promotions within Class-I.
Nor does
the Memorandum dated March 26, 1970 provide for such reservation. The idea is
self evident. While the rule of reservation is made applicable to the lower
categories, viz., Classes-II, III and IV (to the extent specified in the said
Memorandums), no such reservation was thought advisable in the matter of
promotions within Class-I. Instead of reservation, a concession was Provided,
the concession explained hereinabove. It is this fact which has been
reiterated, affirmed and clarified in the subsequent letters of the Finance
Ministry. It is thus clear that the letters of the Ministry of Finance dated
May 30, 1981 and the subsequent ones do not amend or modify the Office
Memorandum dated March 26, 1970 but merely explain it. They make explicit what
is implicit in it. So is the rendering of Para
9.2 in the seventh edition in the Brochure. What all they say is that the rule
of reservation does not apply to promotions within Class-I (i.e., promotions to
be made on the basis of selection to posts which carry an ultimate salary of
Rs.2250/- per month or less in the revised scale) but a concession in terms of
Para 2 of the Memorandum dated March 26, 1970 is provided in that behalf It
cannot, there- fore, be said that either the letters of the Ministry of Finance
or the rendering of Para 9.2 in the seventh edition of the Brochure is
inconsistent with the Memorandum dated March 26, 1970 or that they arc contrary
to the orders of the Government.
20.
Now coming to the decision in Bihar State Harijan Kalyan Parishad the attack
therein was upon two letters, one issued by the Ministry of Steel and Mines
dated April 8, 1982 addressed to the Chairman of the Steel Authority of India
Limited and the other dated August 19, 1982 from the Steel Authority of India
Limited to the Chief Personnel Manager, Bokaro Steel Plant respectively. It was
contended that the said letters were inconsistent with and contrary to Para 9
of the Brochure. The judgment starts die discussion by saying:
"the
Government of India, Ministry of Finance, Bureau of Public Enterprises, issued
a directive to the Chief Executives of all Public Sector Enterprises on the
subject of reservation for Scheduled Castes and Scheduled Tribes in
appointments in public enterprises.
While
15 per cent and 7 1/2 per cent of posts am generally to be reserved for
Scheduled Castes and Scheduled Tribes respectively, in the cam: of promotion of
members of the Scheduled Castes and Scheduled Tribes to posts, promotion to
which are by the selection method a special procedure is devised by Para 9 of
the directive. " After setting out Para 9, the judgment proceeds to say:
"(A)
close perusal of the directive and in particular paragraph 9 which deals with
"concessions to employees of Scheduled Castes and Scheduled Tribes in
promotions by selection method" makes it abundantly clear that the rule of
reservation also applicable to promotions by selection to posts within Group
'A' which carry an ultimate salary of Rs.2250 per month or less, but that the
procedure is slightly different than in the case of other posts. While the rule
of reservation applies to promotions by selection to posts within Group 'A'
carrying a salary of Rs.2250 per month or less, it is prescribed that only
those officers belonging to the Sched- 348 uled Castes and Scheduled Tribes
will be considered for promotion, who are senior enough to be within the zone
of consideration.
Thereafter
a Select List depending upon the number of vacancies would be drawn up in which
would also be included those officers belonging to the Scheduled Castes and
Scheduled Tribes who are not considered unfit for promotion, Their position in
the Select list would be that assigned to them by the Departmental Promotion
Committee on the basis of the record of service. In other words, their
inclusion in the Select List would not give them seniority, merely by virtue of
their belonging to the Scheduled Castes and Scheduled Tribes over other
officers placed above them in the Select list by th e Departmental Promotion
Committee. This appears to us to be the only possible interpretation of
paragraph 9 of the directive." 21.Though the judgment does not give the
reference number or date of the directive referred to by it (i.e., the one is-
sued by the Government of India, Ministry of Finance, Bureau of Enterprises to
the Chief Executives of all Public Sector Enterprises on the subject of
reservation for Scheduled Castes and Scheduled Tribes) the reference evidently
is to the Office Memorandum No.6/16/81-BPE/GM-1(SCT Cell) dated January 18,
1982 addressed to all Ministries/departments of Government of India and Chief
Executives of all Public Enterprises, a copy of which is supplied to us in the
paper book furnished by the petitioners. The subject of the Memorandum is
"reservation for Scheduled Castes and Scheduled Tribes in appointments in
public enterprises - issue of revised draft directives". The Memorandum
says that several orders/instructions have been issued on the said subject
previously but that "it has now been found necessary that a consolidated
directive should be issued incorporating all the provisions contained in the
supplementary directives and also the provisions contained in the orders issued
from time to time by Department of Personnel and Administrative Reforms.
Accordingly, it says,"a comprehensive revised Draft Presidential
Directives on the subject have been drawn up and enclosed". The enclosure
to the said letter is entitled "Concessions to employees of Scheduled
Castes and Scheduled tribes in promo- tions by selection method". It opens
with the heading "Group A and B appointments" and under it the
sub-heading is "A.Promotion within Group A". The first: sub-para reads
thus:
"In
promotions by selection to posts within Group 'A' which carry an ultimate
salary of Rs.2250/- per month or less, the Scheduled Caste/Scheduled Tribe
Officers, who arc senior enough in the zone of consideration for promotion so
as to be within the number of vacancies for which the select list has to be
drawn up, would be included in that list provided they are not considered unfit
for promotion. Their position in the select fist, would, however, be the same
as assigned to them by the Departmental Promotion Committee on the bats of
their record of service. They would not be given, for this purpose one grading
higher than the grading otherwise assignable to them on the basis of their
record of service." 22.The: second sub-pant sets out the special training
and facilities extended to Scheduled Castes/Scheduled Tribes office as to
improve their efficiency. It is thus clear that what is mentioned under
subheading "A.Promotions within Group 'A " is nothing but Pant 9 of
the Brochure, which is quoted in the judgment in Bihar State Harijan Kalyan Parishad.
We 349 may also mention that the said enclosure contains several other matters
under subheadings, "9AA. Promotions through limited departmental
competitive examination",
"9B.
Promotions by selection from Group 'C' to Group 'B', within Group 'B' and from
Group 'B' to the lowest rung or category in Group 'A... and "9BB. Promotions
by selection in Group 'C' and 'D' appointments". So far as promotions
within Group 'A' are concerned, the said enclosure (Paragraph 9A) - referred to
as the directive in the judgment - does not say that the rule of reservation
'is applicable to such promotions. It only speaks of the concession which is
but a repetition of the concession contained in the Office Memorandum dated
March 26, 1970. In other words, the directive referred to in the judgment - or
for that matter Para 9 set out therein - does not provide for reservation in
the matter of promotions within Class-I. It only provides for the concession
aforementioned. It appears that the attention of the learned Judges was also
not invited to the Office Memorandum dated March 26, 1970 or to the other Of- fice
Memorandums and letters specifically. Be that as it may what is relevant is
that neither the Presidential Directive referred to in Bihar State Harijan Kalyan
Parishad nor the Office Memorandums referred to above nor for that matter Para
9 of the Brochure provide for reservation in the matter of promotions within
Class-I. We must, therefore, say with great respect that the assumption made in
the judgment in Bihar State Harijan Kalyan Parishad that the rule of
reservation applies to promotions within Class-I does not appear to be correct.
We may also mention that Paras 9.1 and 9.2, as set out in the Brochure (seventh
edition), do not say anything different. Para 9.2 insofar as is relevant has
already been set out in Para 15, We may now set out Para 9.1 in full:
"9.1
Promotion through limited departmental competitive examinations As indicated in
para 2.1 (iii)(a), there is a reservation of 15 percent and 7 1/2 per cent of
vacancies for Scheduled Castes and Scheduled Tribes respectively in promotions
made on the basis of competitive examination limited to departmental
candidates, in Groups B, C and D (Class 11, III and IV posts, in grades or
services in which the element of direct recruitment, if any, does not exceed
66-2/3 per cent. (Detailed instructions for filling such reserved vacancies arc
given in Appendix 13).
In
promotions though departmental competitive examinations, Scheduled
Castes/Scheduled Tribes candidates who have not acquired the general qualifying
standard should also be considered for promotion provided they arc not found
unfit for such promotion. The qualifying standard in such examination should be
relaxed in favour of Scheduled Castes and Scheduled Tribes candidates in
keeping with the above criterian.
For
determining the number of vacancies to be reserved for Scheduled Castes and
Scheduled Tribes in such promotions, a separate roster on the lines of the
roster prescribed in Annexure I to O.M. No. III 1/69.Est.(SCT) dated 22-41970
(in which points 1, 8, 14, 22, 28 and 36 are reserved for Scheduled Castes and
points 4, 17 and 31 are reserved for Scheduled Tribes) should be
followed."
23.
For the above reasons, we must say, with all the respect at our command that
the decision in Bihar State Harijan Kalyan Parishad cannot be, said to pay down
the law correctly insofar as it pur- 350 ports to hold that the rule of
reservation applies in the matter of promotions within Class-I.
24.It
is brought to our notice that a review petition was filed against the aforesaid
decision, which was disposed of on January 21, 1987. The order in review reads:
"This
miscellaneous petition is consequence of a misunderstanding of our judgment
dated 1st March, 1985 by the authorities. We wish to
clarify the position by stating that the Scheduled Castes/ Scheduled Tribes
officers who arc senior enough to be within the zone of consideration for
promotion should be included in the Select List against the vacancies available
to the members of Scheduled Castes/ Scheduled Tribes according to the roster,
provided they are not considered unfit for promotion. Paragraph 2 of the
Presidential Directive should be strictly adhered to and effect shall be given
on the basis of scales of pay that obtained prior to 1975 as mentioned in that
paragraph. The officers promoted as a consequence of our order will be entitled
to be paid a salary and allowances from the respective dates with effect from
which they should have been promoted. We am grateful to Shri G.Ramaswamy,
learned Additional Solicitor General far his assistance."
25.
This order also proceeds on the assumption that the procedure prescribed by Para 9 of the Brochure should be followed only with
respect to vacancies reserved for Scheduled Castes/Scheduled Tribes. For the
reasons mentioned hereinbefore, this order cannot also be accepted as laying
down the correct interpretation of the, aforesaid Memorandums or the
Presidential directive.
26.It
Reliance was next placed upon the subsequent decision of this Court in
Syndicate Bank Scheduled Castes/Scheduled Tribes Employees Association v. Union
of India & Ors. (1990 Suppl.S.C.C.350), a decision rendered by N.M.Kasliwal
and S.C.Agrawal,JJ. on August 10, 1990. Following the decision in Bihar State Harijan
Kalyan Parishad, it was held in this decision that in the matter of promotions
within Class-I (Group-A) posts, rule of reservation applies though subject to
the procedure prescribed in Para 9 of the Brochure. The operative portion of
the judgment reads thus:
"It
is further decided that though Group 'A' posts are selection posts still the
reservation policy is applicable to such posts and the respondents are directed
to com- pute the backlog of unfilled reserved quota available to SC./ST
officers in the promo- tional posts with effect from January 1, 1978 the date
of introduction of reservation policy in the respondent Bank. The respondents
are further directed to grant promotion to the SC/ST employees of the Syndicate
Bank with all consequential benefits of salary and allowances from the
respective dates w.e.f which they should have been promoted after applying the
roster system in their favour.
We
grant three months time to carry out these directions."
27. It
appears that a review petition was moved by the respondents in the said writ
petition relying particularly upon the words "there is no
reservation" occurring in Para 9.2(a) of the Brochure,. Reliance was also
placed by the respondents on a decision of this Court in All India Bank of
Baroda Scheduled Castes and Scheduled Tribes Employees Association v. Union of
India & Ors. (Writ Petition No. 1594 of 1987 decided on August 18, 1988) in
351 which it was held that promotions by selection within Class- I, to be
effected on the basis of selection, shall be effected in accordance with the
rules contained in Para 9.2 of the Brochure. The review petition was dismissed
on April 1, 1991 holding that the decision dated August 10, 1990 was based upon
the material placed before them. It was observed that the failure of the
parties to bring a particular fact to the notice of the court furnishes no
ground for review.
The
precise reason for dismissing the review is to be found in the following
observation:
"We
may, however, make it clear that in the present case we were only concerned
with Scheduled Castes and Scheduled Tribes employees of the Syndicate Bank and
the policy of reservation with regard to such employees.
We
have decided the matter on the basis of the material made available to us at
the time of arguments and on the basis of contentions made by counsel
representing the respective parties .
The
case as such was decided on the peculiar facts and circumstances of the case
and in case such controversy arises in future of Scheduled Castes and Scheduled
Tribes employees of other banks, in our view the parties will be free to get
the controversy decided by a proper forum by placing their respective stands.
With the above observations we dismiss the Review Petition filed by the Union
of India and the Bank." 28.What we have said with respect to the decision
in Bihar Stale Harijan Kalyan Parishad applies equally to the judgment in
Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association. Another
circumstance. The present writ petitions were filed evidently inspired by the
decision in Syndicate Bank Scheduled Castes and Scheduled Tribes Employees
Association rendered on August 10, 1990.
When
the first of these writ petitions (Writ Petition (C) No.896 of 1990) came up
before a Bench on November 26, 1990 it was directed that the writ petition be
posted immediately after the disposal of Review Petition Nos.592 of 1990 and
608 of 1990 (review petitions referred to hereinabove).
After
the review petitions were disposed of on April 1, 1991, Writ Petition No.896 of
1990 along with other transferred writ petitions were posted before a Bench
comprising T.K.Thommen,J. and one of us (R.M.Sahai,J.) when it was directed
that these matters be placed before a Bench of which Hon'ble Mr.Justice N.M.Kasliwal
or Hon'ble Mr. Justice S.C.Agrawal are members. The matters were accordingly
posted before a Bench comprising S.C.Agrawal and Sujata V.Manohar,JJ. on
January 18, 1.995. After hearing the parties, the Bench directed these matters
to be listed before a Bench of three Judges,, It is pursuant to the said
direction that these matters were posted before us.
29. It
is true that we have arrived at a, conclusion which is different from the one
adopted in Bihar State Harijan Kalyan parishad and in Syndicate Bank Scheduled
Castes and Scheduled Tribes Employees Association but on have no alternative in
view of the clear language of the Office Memorandum dated March 26, 1970, the
Presidential directive referred to in Bihar State Harijan Kalyan Parishad as
also Paragraph 9 of the Brochure (whichever edition one looks to). It may be
that according to our interpretation, the members of Scheduled Castes/Scheduled
Tribes may stand to gain in some cases, in the sense that they may get more
number of promotions than they would have been en- 352 titled to had the rule
of reservation been applied to promotions within Class-I, while in some other
cases they may stand to lose. But that cannot be a factor determining the
interpretation of the relevant orders. It also appears that a view different
from the view taken in Bihar State Harijan Kalyan Parishad was taken in the
order dated August 19, 1988 in Writ Petition No. 1594 of 1987 (All Indian Bank
of Baroda SC/ST Employees Association v. Union of India & Ors.), wherein it
was held, no doubt on the basis of a concession made by the learned counsel for
the writ petitioners, that "the promotion by selection method of officers
within Group 'A' (Class-I) in the Bank of Baroda shall be done in accordance
with the rules contained in Paragraph 9.2 in Chapter 9 of the Brochure".
This order does not refer to rule of reservation.
30. We
may reiterate that both according to Sri Rajinder Sachhar as well as learned
counsel for the respondents, there is no specific order, rule or Memmorandum
applying the rule of reservation in favour of Scheduled Castes/Scheduled Tribes
in the matter of promotions within Class-I service.
In the
absence of such reservation, the forty-point roster prepared by the Government
of India cannot be applied or followed, for the simple reason that the roster
is prepared merely in implementation of and to carry out the rule of
reservation. There can be no roster in the absence of rule of reservation. If
the rule of reservation is not made applicable to a particular appointment or
promotion, there can be no question of following the forty-point roster therefor.
The forty-point roster itself does not provides reservation. It merely
specifies places for reserved categories in accordance with and consistent with
the rule of reservation already made.
31.For
the above reasons, we hold that in the matter of promotion by selection to
posts within Class-I which carry an ultimate salary of Rs.2250/- in the revised
scale of pay per month or less, there is no reservation in favour of Scheduled
Castes/ Scheduled Tribes but they arc entitled to the concession contained in
Para 2 of the Office Memorandum dated March 26, 1970 issued by the Ministry of
Home Affairs.
The
concession is that those Scheduled Castes/Scheduled Tribes officers who are
senior enough in the zone of consideration for promotion so as to be within the
number of vacancies for which the select list has to be drawn up will be
included in the select list provided they are not con- sidered unfit for
promotion. (This rule has been explained in the body of the judgment by giving
an illustration, which it is not necessary to repeat here.) The position of
such candidates included in the select list would, however, be the same as is
assigned to them by the Departmental Pro- motion Committee on the basis of
their record of service.
The
said candidates would not be entitled, for the purpose of the said selection,
one grading higher than the grading otherwise assignable to them on the basis
of their record of service. Ibis is also the purport of Para 9 of the Brochure
insofar as it deals with promotions within Class-I.
32.So
far as Prayer (b) in Writ Petition No.896 of 1990 is concerned, we must say
that it is not possible to accede to it. The prayer is to direct the
respondents in the writ petition to fill up the backlog of unfilled vacancies
since 1978 by applying the carry- forward rule in all grades and scales with
consequential benefits. Firstly, 353 none of the relevant Memorandums and
orders referred to above provide for carry forward rule. In the absence of such
a rule, each year has to be treated as the unit for applying the rule of
reservation or concession, as the case may be. In any event, so far as the
concession concerned herein is concerned, it can be applied and followed only
when a selection takes place. In the absence of a rule to that effect, the said
concession cannot be given effect to retrospectively. These writ petitions were
filed only in 1990 or thereafter. In such a case, there can be no question of
relating back the relief to 1978. So far as Prayer (c) is concerned, it is
equally beside the point in the light of what we have decided herein, viz.,
that the special provision made in the matter of promotions with Class-I is not
in the nature of reservation but a con- cession. The only declaration and
direction that can be granted in these matters is that the respondents shall
apply, implement and follow the concession contained in Para 2 of the Office
Memorandum dated March 26, 1970 aforesaid in the matter of promotions in
Class-I to be made hereafter.
Of
course, so far as promotions to Classes-II, III and IV and promotions from
Class-II to the lowest rung or category in Class-I are concerned, the orders in
Office Memorandum dated July
11, 1968 shall be
followed.
33.The
writ petitions and transfer petitions are disposed of in the above terms. There
shall be no orders as to costs.
34.No
arguments were addressed in the Interlocutory Applications. No orders are
called for therein.
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