State
Bank of India Scheduled Caste/Tribe Employees
Welfare A Vs. State Bank of India & Ors [1996] INSC 606 (24 April 1996)
Manohar
Sujata V. (J) Manohar Sujata V. (J) Ahmadi A.M. (Cj) Kirpal B.N. (J) Mrs. Sujata
v. Manohar, J.
CITATION:
1996 AIR 1838 1996 SCC (4) 119 JT 1996 (4) 547 1996 SCALE (3)799
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NOS.3937-39 OF 1986 State Bank of India & Ors. V. S. Narasimha &
Anr.
Writ
Petition Nos.13671-72 of 1984 are filed by the State Bank of India Scheduled
Caste/Tribe Employees' Welfare Association, Chandigarh challenging the
reservation policy framed by the State Bank of India reserving certain posts
for employees belonging to Scheduled Castes and Scheduled Tribes on promotion
at the stage of from "Award Cadre~' to the Junior Management Grade Cadre.
The same policy was challenged before the Andhra Pradesh High Court by some of
the employees of the State Bank of India working with the Hyderabad
Circle in Writ
Petitions bearing Nos. 7237/82, 10149/84 and 1786/86 filed in the Andhra
Pradesh High Court.
Civil
Appeal Nos.3937-39 of 1986 are from the decision of the Andhra Pradesh High
Court in these writ petitions.
Since
all these matters raise certain common questions they have been heard together.
Prior to 1974 there was no provision for reservation of vacancies for the
Scheduled Castes and Scheduled Tribes in the matter of internal promotion in
the State Bank of India. In 1974, it was decided to grant a
concession to the Scheduled Caste and Scheduled Tribe employees in the matter
of promotions. When such promotions were to be made on the basis of a selection
procedure by way of written tests and interviews, it was decided that a
concession to the extent of 5% in qualifying marks in the written test and 10%
in the interviews would be given to the Scheduled Caste and Scheduled Tribe
employees.
It was
also decided that interviews of the Scheduled Caste and Scheduled Tribe
employees would be taken in separate sittings in order to avoid a comparison of
their standards with the standards of general candidates.
In
January 1978, the Government of India decided to extend the policy of
reservations to Scheduled Caste and Scheduled Tribe employees in the
Nationalized Banks in the matter of promotions. The Government of India advised
each of the Nationalized Banks to formulate its own policy of such reservation
on the basis of a scheme already formulated by the Reserve Bank of India for
its own employees and on the basis of various guidelines issued by the
Government in this regard in the past from time to time with such modifications
as each bank may consider necessary.
Accordingly,
the State Bank of India issued a Circular dated 3.4.1978
setting out its scheme of reservation in favour of its Scheduled Caste and
Scheduled Tribe employees in the matter of promotion. This scheme was to be
operated with effect from 1st of March, 1978. We are concerned with this scheme
insofar as it deals with promotions made from the Award Cadre to the
Supervising Cadres.
Under
the scheme so framed, a reservation to the extent of 15% is made in favour of
Scheduled Caste employees and 7- 1/2% in favour of Scheduled Tribe employees
(Paragraph 1.3).
Paragraph
1.6 states that the number of reserved vacancies which cannot be filled should
be carried forward from one year to the next year upto a period of three years.
If at the end of the third year such vacancies reserved for Scheduled Caste and
Scheduled Tribe employees cannot be filled by suitable employees belonging to
these categories such reservation will be treated as having lapsed. Under
Paragraph 2.3 if an adequate number of SC/ST employees with normal length of
service are not available, service norms will be relaxed in the case of SC/ST
employees by two years where such service norms for general candidates is eight
years' service or above. Where the norm is less than eight years' service for
general candidates the norm shall be relaxed by one year in the case of SC/ST
employees. Under Paragraph 3.3 a common written test will be held for all the
candidates including Scheduled Caste and Scheduled Tribe candidates. The SC/ST
employees will be granted relaxation to the extent 5% of the required
qualifying marks. Under Paragraph 3.4. interviews of SC/ST employees who
qualify at the written test will he held in separate sittings in order to avoid
comparison of their standard with the standard of general candidates. The SC/ST
employees will be granted relaxation to the extent of 10% of the required
qualifying marks in the interviews.
For
the purpose of these promotions, the number of candidates who are required to
be considered is in the ratio of 3:1 bearing in mind the number of vacancies.
In order to decide the norm of number of years of service for being eligible
for consideration the number of candidates in the zone of consideration is
first decided on the basis of anticipated vacancies multiplied by three. In the
order of seniority, the requisite number of candidates in the zone of
consideration are decided upon. The service put in by the last eligible
candidate is the minimum service norm. On the basis of this service norm,
relaxation is given to SC/ST employees as per paragraph 2.3 of the scheme.
The
reservation policy was applied by the State Bank of India from 1.3.1978. In the year 1978, in
the Hyderabad Circle the posts to be filled in the
promotional Cadre were 371, out of which 83 posts were reserved for SC/ST
candidates. The minimum service requirement for eligibility in that year for
general candidates was 8 years. The norm for SC/ST candidates was therefore, 6
years. In that year no candidate belonging to the Scheduled Castes and
Scheduled Tribes was found available. In the year 1979, 547 posts became
available out of which 123 posts were reserved for Scheduled Caste and
Scheduled Tribe candidates. The minimum service fixed for general candidates in
that year was 7 years and 8 months. The service norm for Scheduled Caste and
Scheduled Tribe candidates was accordingly 6 years and 8 months. Yet only 20
employees belonging to Scheduled Castes and Scheduled Tribes could be promoted.
Similar problems continued upto the year 1982. The main reason for the
difficulty in implementing the circular of 3.4.1978 appears to be
non-availability of a sufficient number of scheduled Caste of and Scheduled
Tribe candidates with the required years of service for promotion. This may be
because reservations for Scheduled Caste and Scheduled Tribe candidates in
recruitment were made in the State Bank of India only in the year 1974. Whatever may be the reason, by 1982-83, the
State Bank of India took remedial measures to correct
this non-selection of Scheduled Caste and scheduled Tribe employees in the
promotional.
State
Bank of India, Central Office, issued a circular
dated 28th of July, 1983 to its Chief General Managers in all parts of the country
pointing out that there were backlogs in promotions with regard to Scheduled
Caste and Scheduled Tribe employees. The Government of India had urged that
efforts should be made to ensure that reservations of 15% and 7-1/2% for SC/ST
employees were adhered to. However, the maximum reservations in any year should
not exceed 50% of the vacancies/promotions. The circular urged that the backlog
should be cleared expeditiously. It stated "one possible reason for this
shortfall in promotion is the high cut-off point (for service norm) arrived at
by the circles even taking into account the relaxation involved at
present." It had therefore, been decided (a) to relax the service limit in
the case of SC/ST candidates to the extent that enough candidates were available
to satisfy the ratio of 1:3. However, if it became absolutely essential to
reduce the service criterion below 5 years, the matter should be referred to
the Central Office with full particulars. The circular also stated that where
considered necessary, exclusive tests for SC/ST candidates should be conducted
to clear the backlong of promotions in this category.
In
February 1984, it was decided to hold a special test exclusively for Scheduled
Caste and Scheduled Tribe employees for promotion to the Junior Management
Grade Cadre by relaxing the service norms. In view of the special test being
proposed for Scheduled Caste and Scheduled Tribe employees, it was also
announced that in the general test which was proposed to be held immediately
afterwards, only the candidates belonging to the general category would the
eligible to participate. This led to the boycott of the special test by most of
the Scheduled Caste and Scheduled Tribe employees.
The
employees of the Hyderabad
Circle filed three
writ petitions in the Andhra Pradesh High Court. These challenged the service
norms fixed for Scheduled Caste and Scheduled Tribe employees as too high,
resulting in frustration of the reservation policy. They also challenged the
circular of 28th of July, 1983 insofar as it provided that only 5% of the
vacancies could be made available in any given year for being filled by
Scheduled Caste and Scheduled Tribe employees. The petitions also prayed for
retrospective relaxation of service norms from 1978 onwards in order that all
lapsed vacancies could he retrospectively filled. The same contentions have
been raised in the Writ Petitions, filed by the Chandigarh Circle SC/ST
Employees' Welfare Association. The Andhra Pradesh High Court upheld the
provision in the Circular of 28.7.1983 which provided that a maximum of 50% of
vacancies in any year should be made available for being filled by Scheduled
Caste/Scheduled Tribe employees, to reduce the backlog of reserved vacancies.
The High Court further held that the service norms for Scheduled Caste and
Scheduled Tribe employees should be reduced to five years so that sufficient
number of candidates would be available in the zone of consideration for
filling up the reserved vacancies. The High Court correspondingly fixed the
service norms for general candidates at six years. The State Bank of India has come in appeal before us under
a certificate of fitness granted by the High Court.
During
the pendency of these matters, under interim order of this Court dated
22.11.1985, it was directed that no posts meant for Scheduled Caste and
Scheduled Tribe categories should be allowed to lapse. As a result, all
vacancies which are reserved for Scheduled Caste and Scheduled Tribe candidates
are now being duly filled in. In fact, at one stage it seem to have been the
grievance of the Scheduled Caste and Scheduled Tribe employees that by
reduction of service norms (as per the High Court's order) now far too many
Scheduled Caste and Scheduled Tribe employees are within the zone of
consideration for promotions. Directions were sought from the Andhra Pradesh
High Court to keep the ratio of eligible Scheduled Caste and Scheduled Tribe
candidates at 3:1 depending upon the number of vacancies and fix service norms
accordingly. This seems to indicate that the anomalies in working out the
reduced norms for selection of Scheduled Caste and Scheduled Tribe employees in
the matter of promotion to the JMG cadre have been ironed out.
Ms. Jaising,
learned counsel for the employees contends that from 1978 onwards and until a
further relaxation of service norms was provided for under the circular of
28.7.1983, various unfilled vacancies reserved for Scheduled Caste/Scheduled
Tribe employees lapsed after the expiry of three years. She contends that these
vacancies should not be allowed to lapse. These lapsed vacancies should be
filled in retrospectively on the basis of subsequent relaxation granted by the
circular of 28.7.1983. It is also contended on behalf of the employees that the
direction in the circular, that in any given year, not more than 50% of the
vacancies should be available for being filled in by Scheduled Caste/Scheduled
Tribe candidates, is violative of Article 16. Both these contentions, namely
about the carrying forward of reserved vacancies for a period of three years at
the end of which they lapse, and the provision that in any given year not more
than 50% of the available vacancies should be reserved, have been negatived by
this Court in the case of Akhil Bharatiya Soshit Karamachari Sangh (Railway Represented
by its Assistant General Secretary on behalf of the Association v. Union of
India & Ors. (1981 (2) SCR 185). In that case a similar provision for
carrying forward of reserved vacancies for scheduled Castes and Scheduled
Tribes for a period of three years was upheld by this Court. This Court also
upheld the instructions issued by the Railway Board in that case to the effect
that in any given year not more than 50% of the promotional posts should be
made available to the reserved category of Scheduled Caste and Scheduled Tribe
candidates; holding that the carry-forward rule should not result in any given
year in the selection or appointment of Scheduled Caste and Scheduled Tribe
candidates in excess of 50% (p.242). In the light of this judgment the scheme
formulated by the State Bank of India under the two circulars of 3rd of April,
1978 and 28th of July, 1983, thus cannot be faulted.
It is
contended on behalf of the employees that in the light of the subsequent
relaxation in service norms granted by the circular of 28.7.1983, which was in
excess of the relaxation originally granted under the circular of 3.4.1978 the
lapsed vacancies should be retrospectively filled. We find it difficult to
accept this contention. In the first place any relaxation granted in favour of
Scheduled Caste and Scheduled Tribe employees in respect of service norms is a
matter of policy. Undoubtedly, Article 16 (4) enables the Government to make
reservations for Scheduled Castes and Scheduled Tribes either at the initial
stage of recruitment or at the stage of promotion. This Court in the case of C.A.Rajendran
v. Union of India & Ors. (1968 (1) SCR 721) has stated that Article 16(4)
does not confer any right on the petitioner and there is no constitutional duty
imposed on the Government to make such a reservation. Article 16(4) is an
enabling provision and confers a discretionary power on the State to make
reservations either at the stage of the initial recruitment or at the stage of
promotion in favour of a backward class of citizens which in its opinion, is
not adequately represented in the service of the State.
The
same view has been reiterated by this Court in the case of P & T Scheduled
Caste/Tribe Employees Welfare Association (Regd.) & Ors. v. Union of India
& Ors. (1988 (4) 147).
In the
present case, such reservation has been made by the State Bank of India at the
promotional stage in the manner which is set out in the two circulars. These
circulars have been applied at the relevant times. the circular of 28.7.1983
gave a further relaxation in service norms exceeding the relaxation prescribed
in the first circular of 3.4.1978. As a result. service norms for the reserved
category could be relaxed to 5 years of service.
The
circular also gave the power to relax the service norms even further, but with
the sanction of the Central Office of the State Bank. of India. This is not a
relaxation which can be applied retrospectively. It becomes available from the
date when it is granted and is not a matter of right. It would, therefore, be
very difficult to relate back the relief on the basis of the second circular of
28.7.1983 to the years 1978 to 1983. The reserved vacancies in the promotional
posts during this period. If not filled, lapsed after three years as per the
scheme framed under the earlier circular of 3.4.1978. We do not see how these
lapsed vacancies can now be revived Our attention in this connection has been
drawn to a recent decision of this Court in the case of National Federation of
S.B.I. & Ors. v. Union of India & Ors. (1995 (3) SCC 532). In that
case, one of the prayers was for a direction to fill up the backlog of unfilled
vacancies since 1978 by applying the carry-forward rule in all grades and
scales with consequential benefits, This Court said that in the absence of a
rule providing for retrospective grant of concession such a relief could not be
granted. This judgement which is of a Bench of three judges of this Court has
differed from the decision of a Bench of two judges of this Court in Syndicate
Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.),&
Ors. v. Union of India & Ors. (1990 [Supp.]
SCC 350 at 361). The Judgement in the Syndicate Bank's case (supra) has been
relied upon by learned counsel for the employees in support of her contention
that retrospective relief should be granted in the present case. In view of the
observations in the later judgment of a larger Bench of this Court in the case
of National Federation of S.B.I. (supra), we prefer to follow the ratio laid
down in the case of the National Federation of S.B.I. & Ors. v. Union of India & Ors. (supra). In the present case, in
view of the interim orders of this Court referred to earlier, as also in view
of the further relaxation in service norms which was granted by the circular of
28.7.1983, most of the grievances of the employees relating to the filling up
posts reserved for SC/ST employees have now been met. Even earlier, the State
Bank of India, realizing the difficulties in implementing the norms laid down
by it in the circular dated 3.4.1978 had given directions for holding of
special tests only for Scheduled Caste and Scheduled Tribe employees to fill up
the backlog after further relaxing service norms to five years' service or even
less which the sanction of the Central Office so that the ratio of three
candidates for every vacancy became available in respect of reserved vacancies
also. This opportunity, however, was not availed of by the Scheduled Caste and
Scheduled Tribe employees for reasons which we need not go into. Subsequently,
in the general tests also, then have been allowed to compete. They have been
considered for promotion to the reserved vacancies on the basis of relaxed
service norms as set out in the subsequent circular of 28.7.1983. From the
applications which have been made to the Andhra Pradesh High Court for interim
orders during the pendency of these matters before us, it is clear that
adequate number of SC/ST candidates are now available for filling promotional
vacancies under the further relaxed service norms set out in the circular of
28.7.1983. In view thereof, the directions listen by the Andhra Pradesh High
Court to the effect that for filling up of reserved vacancies the service norms
Scheduled Caste and Scheduled Tribe candidate should be five years service and
for general category candidates, six years' service appears to have become
unnecessary. The circular of 28.7.1983 clearly provides that service norms set
out in the circular of 3.4.1978 can be further relaxed to the extent required
up to five years so as to obtain three candidates for every reserved vacancy.
Even a further relaxation is permissible with the approval of the Central
Office. The provision for relaxation under circular of 28.7.1983 thus
adequately safeguards the interests of Scheduled Caste and Scheduled Tribe
employees and provides a fair opportunity to them for filling up reserved
vacancies as they arise. The further direction, therefore, given by the Andhra
Pradesh High Court can now be ignored.
In the
premises, the writ petitions are dismissed. The appeals from the judgment of
the Andhra Pradesh High Court are also dismissed with the above observation. In
the circumstances, however, there will be no order as to costs.
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