G.S.I.C.
Karmachari Union & Ors Vs. Gujarat Small
Industries Corpn. & Ors [1996] INSC 1602 (12 December 1996)
K. Ramaswamy,
S.B. Majmudar, G.T. Nanavati
ACT:
HEAD NOTE:
O R D
E R
This
writ petition under Article 32 of the Constitution has been filed challenging
the validity of the Resolution dated August 29, 1987 where under the
respondent-Corporation had resolved to implement the roster system and
promotion of Scheduled and Tribes employer as per the directives and Resolution
of the Gujarat Government on January 31, 1976 to give effect to the policy of
reservation in promotions in all Class-I, Class-II and Class posts in grades or
services in which the element of direct recruitment, if any, does not exceed
50%. The decision on the fitness or unfitness of an Officer would be taken by
the departmental Promotion committee which would be constituted by the
Departments. A 100 point roster as per percentages of reservation for Scheduled
Castes and Scheduled Tribes, to determine the number of vacancies reserved in a
year would be followed.
According
to the points in the roster, if their are any vacancies reserved for each of
the two classes mentioned separate lists would be drawn up of the eligible
candidates for each of these categories and general candidates and arranged in
order of their inter-se seniority in the main list. The Scheduled Castes and
Scheduled Tribes employees should be adjudged by the Departmental Promotion
committee separately in regard to their fitness. In paragraph 4 of the
Resolution, it was stated that these orders would take effect from January 1, 1976.
On
April 30, 1984, the respondent-Board passed a Resolution that in Article 16(4)
and Article 335 of the Constitution provision has been made for backward
classes for appointment and, therefore, their should be no difficulty in
providing reservation in appointment to posts to give the benefit to the
backward classes; and that the percentage of reservation as is kept in the
Government service would be applicable to the Corporation. As per the orders of
the Board, for every type of recruitment at every stage or service or place, a
separate roster register, as per the prescribed format, is to be Kept. The
Board had given order for filling up the posts as per the percentage for
Scheduled Castes an Schaduled Tribes. But for introduction of roster system in
the direct recruitment or promotion the Corporation had not yet issued any
orders. The Corporation, therefore, resolved to give effect to the objectives
of the Government and authorized the Managing Director to follow the roster
system scrupulously as per the directions of the Government in IMPD, vide
letter dated September
29, 1983 for class-I
to class-IV employees which are as under:
(1)
For SC/ST (i) For direct recruitment Class I up to Sr. Executive's level and
Class II, II and IV employees.
(ii)
For promotion Class I upto Executive level and Class II, III and IV employees.
(2)
For Socially and Educationally Backward Class and Physically handicapped (i)
For direct recruitment only Class I, Class II, Class III and Class IV
employees." Subsequently, they passed the impugned Resolution giving
effect to the policy of reservation and the roster system w.e.f. 1.1.1976. The
question is: from what date the Corporation would give effect to the roster
system? It is true, as contended by Shri P.S. Poti learned senior counsel for
the State, that when the policy of the Government envisaged under Article 16(4)
read with Articles 14 and 16(1) and 335 is given effect to the reservation in
initial requirement and promotion can be made. But the question of
retrospectively the policy does not arise; what is being done is to give effect
to the constitutional policy of providing adequate representation to the
members of Scheduled Castes and Scheduled Tribes in all Classes of service or
posts where they are not adequately represented.
therefore,
the arbitrariness does not arise since it is part of the scheme of the
constitution. Unless adequate representation is given to the employees
belonging to Scheduled Castes and Scheduled Tribes in promotions also, the
adequacy to representation in all classes and grades of service, where there is
no element of direct recruitment cannot be achieved. Obvious, therefore,
Article 16(4-A) was brought on the Constitution by Constitution (77th
Amendment) Act, after the majority Judgment of this Court by a Bench of 9
Judges in Indira Sawhney vs. Union of India & Ors. [(1992) Supp. 3 SCC
210]. The Preamble of the Constitution and Article 38 accord social and
economic Justice as fundamental rights to all people in all institutions of
national leave.
Article
46 enjoins the State to accord social and economic justice to the Scheduled
Castes and Scheduled Tribes.
Article
51A enjoins every citizen to improve excellence individually and collectively
so that the nation constantly rises to higher levels, socially, economically
and culturally. Right to development assured by the Constitution is held to be
a fundamental right. So the policy of reservation in the preamble of the
Constitution, the fundamental rights under Articles 14, 15(1), 15(4), 16(1),
16(4), 16(4A) 46 and 335 and the other related articles is to give effect to
the above constitutional objectives.
On the
facts, it is not necessary for us to go into the question of retrospectivity
for the reason that after the aforesaid Resolution and similar other
Resolutions by other institutions came to be passed, followed by agitation
carried on by the antireservationists in the State, the Gujarat State
Government had constituted as Expert Committee to go into the question which
had made 11 recommendations for implementation. One of the recommendations made
by the said committee was to give effect to the policy of reservation
prospectively. The Government had accepted the recommendation and agreed thus:
"Orders
for implementation on the recommendations of the Sadhwani Committee Nos. 5, 6,
9, 10 and 11 will have prospective effect." Item 11 relates to giving
effect to the roster system prospectively. In that view of the matter, the
Government having conceded to the claims of anti-reservationists and passed the
resolution to give effect to the policy of reservation in promotions
prospectively, the respondent- Corporation was justified in passing the
Resolution for giving effect to the policy of reservation in all posts of
classes I to IV from April 30, 1984. The subsequent impugned Resolution giving
effect to the roaster from January 1, 1976,
there for, would not be justified in the light of the Resolution passed by the
Government on August
18, 1985 referred to
earlier.
It is
seen that pending writ petition some officers belonging to Scheduled Castes and
Scheduled Tribes have come to be promoted. Since they are only marginal
promotions, we do not like to interfere with the promotions already made.
Subject
to sustaining the promotions already, there shall be a direction that the
Corporation would keep operating the roster w.e.f. April 30, 1984 and onwards.
The
writ petition is disposed of accordingly. No costs.
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