& Ors Vs. All India Backward Class Bank Employees
Welfare Associatio  Insc 2 (5 January 2004)
Sinha & Arun Kumar.
APPEAL NOS.4595-96 OF 2002 & 4597 OF 2002 S.B. SINHA, J:
Appeal Nos. 4593-4594 of 2002 and 4595-4596 of 2002 have been filed by the
appellants thereof (hereinafter referred to as "Promotees") upon
obtaining permission to file the Special Leave applications against the
judgment and order dated 10.8.2001 passed by the High Court of Judicature at
Bombay Bench at Aurangabad in Writ Petition No. 255/1990. Writ Petition No.
1551/1990 has been filed by All India Backward Class Bank Employees Welfare
Association (hereinafter referred to as "Association") which is the
respondent No. 1 in the aforementioned appeals and the appellant in Civil
Appeal No. 4597/2002.
are employees of Marathwada Gramin Bank (hereinafter referred to as
"Bank"). A circular bearing No. Ho/ST/Cir NO. 35/88 (159) dated
8.11.1988 was issued by the Respondent Bank notifying the eligibility criteria
for internal promotion to the posts of Officers and Field Supervisors. The
Board of Directors of the Bank passed a resolution dated 10.11.1989 approving
the proposal to fill in 23 posts of Officers and 45 posts of Field Supervisors
by promotion fixing the cut off date for eligibility therefor as on 31.8.1989.
The promotions were to be made on application of the principle of
seniority-cum-merit. Out of 45 posts of Field Supervisors, 13 including the
backlog were proposed to be reserved for Scheduled Tribe Category. On or about
27.11.1989 the Respondent Bank issued another circular bearing No. HO/ST/Gr No.
43/89 notifying the vacancies.
Petition No. 255/1990 was filed by the respondent No. 1 herein questioning the
cut off date of 31.8.1989 fixed by the Bank for deciding the eligibility of its
employees for promotion to the posts of Field Supervisors and Officers.
2.2.1990, the High Court passed an interim order in the said Writ Petition in
the following terms:
before admission returnable within four weeks. Interim relief in terms of
prayer clause (C) in the meanwhile".
the said interim order dated 2.2.1990 was modified by the High Court in terms
of an order dated 9.4.1990 directing that the appointment made shall be subject
to the result of the writ petition.
meantime, interview of eligible candidates was held between 10.2.1990 to
contended that no eligible Scheduled Tribe candidate was available for
promotion in the vacancies reserved for Scheduled Tribe category in the Post of
Field Supervisor as on the cut off date of 31.8.1989 or even thereafter
including for filling up the backlog and, thus, the Board of Directors passed a
resolution on or about 17.4.1990 for dereserving the vacancies which were
reserved for Scheduled Tribe candidates. The said proposal was also forwarded
to the Ministry of Finance, Government of India as well as to the Sponsor Bank
and NABARD for requisite permission stating that there was no eligible
Scheduled Tribe candidate for appointment on the said 13 reserved posts.
Ministry of Finance, Government of India approved the proposal for dereservation
of 13 vacancies which were earlier reserved for the Scheduled Tribe candidates.
NABARD also granted its permission for dereservation of said 13 vacancies.
contention of the appellants is that by reason of such dereservation the said
vacancies became available for being filled up by the candidates belonging to
the general category. During pendency of the aforementioned writ petition,
interview was held in between 10.2.1990 and 15.2.1990. The Association filed
the writ petition marked as W.P. 255 of 1990, as noticed hereinbefore, only
questioning the cut off data. Another writ petition was filed by one Shri Ashok
which was marked as writ petition No. 1551 of 1990 questioning the cut off date
as also the order of promotion. However, in both the writ petitions, neither
the promotees nor the Union of India or NABARD were impleaded as parties. In
the said writ petitions the order of dereservation was also not questioned.
reason of the impugned judgment, a Division Bench of the High Court held that
the cut off date fixed by the respondent Bank was valid. It further held that
the Bank did not have any questionable motive in fixing the said cut off date
and the explanation given by it being a plausible one could not be rejected.
The contention raised by the Association to the effect that the said circular
dated 8.11.1988 was issued for the purpose of frustrating the reservation
policy did not find favour with the High Court, as upon a perusal of the select
panel, it became explicit that the candidates from the SC categories had been
appointed. The High Court further observed that even if in place and stead of
31.12.1989 being the cut off date the same was to be taken as 31.3.1990,
nothing had been brought on records to show that any Scheduled Tribe candidate
would have become eligible.
High Court further opined that the Scheduled Tribe candidates having been appointed
sometimes in the year 1994 onwards, the requirements of six years service as
set out in the rules could not have been waived by the Bank by its impugned
however, came to the conclusion that reservation policy being in issue in the
said writ petition, the challenges raised therein should not limit the scope
thereof. Keeping in view the subsequent action taken by the Bank including the
issue of dereservation and appointment of open category candidates to the
respective posts pursuant to the decision of dereservation, the High Court
proceeded to analyse the requirements for notifying dereservation as contained
in the Brochure and held that the Bank did not follow the requisite procedure
to undertake a fresh survey regarding the availability of the eligible
candidates from the respective categories even though such candidates were not
available on the cut off date. It was observed:
therefore, direct the bank to examine the availability of candidates belonging
to ST category for promotion to the post of Field Supervisor and Officer who
became eligible from 18.4.1990 to 17.4. 1991 as well as during the next two
years i.e. up to 17.4.1993 thereby making a period of 3 years for filling in
the backlog of such reserved category candidates, by examining the caste claims
of all such candidates including their service record so as to fulfil the
principle of seniority- cum-merit. This shall be done within a period of two
months from today and those scheduled tribe category candidates who are found
to be eligible, shall be given promotion to the post of Field Supervisor and/
or officer, as the case may be, and the open category candidates who have been
appointed against such posts shall vacate these posts forthwith.
clarify that while withdrawing the appointments made in favour of the open
category candidates against reserved posts, the candidates who joined last
would go first and the bank shall not be entitled to recover any amount from
them as they have already worked in the higher posts. Their pay fixation in the
lower posts shall be done as per the rules. The reserved category candidates,
who shall be so promoted, shall not be entitled to claim arrears in salary, but
for the purpose of seniority in the respective grades, the date of promotion
shall be counted.
have filed appeals upon obtaining leave of this Court questioning the
directions issued by the High Court.
appeal is against that part of the judgment wherein 'cut off' date fixed by the
Bank has been found to be valid.
learned counsel appearing on behalf of the Promotees contended that the High
Court committed a manifest error in passing the impugned judgment as in the
writ petitions neither they were impleaded as parties nor the order of dereservation
was in question.
supporting the impugned judgment, the contention of the Association, on the
other hand, is that keeping in view the fact that 29 vacancies are existing in
the Bank as the concerned employees have either resigned, dismissed or died,
the appellants as also the Scheduled Tribe Candidates can be accommodated
against the said posts. It was urged that although the Association itself did
not question the order of promotion, the same was done by Ashok in his writ
petition and, thus, the High Court cannot be said to have committed an error in
passing the impugned judgment. Furthermore, 13 other writ petitions were filed
by other employees of the Bank questioning the appointment of the appellants
herein which had also been disposed of relying on or on the basis of the
argued that the Bank was not correct in raising the contention before the High
Court that no eligible Scheduled Tribe candidate was available for promotion to
the posts of officers as on 31st December, 1985 as two persons names of whom appeared at Sl. Nos. 67 and 87 of the
Seniority List were members of Scheduled Tribe. It has been contended that as
on today as many as 13 Scheduled Tribe candidates are available for promotion
to the post of Officers and, thus, this Court may direct the respondent Bank to
adjust the appellants as also the Scheduled Tribe candidates against the
existing vacancies. Mr. Ganpule, would further submit that the cut-off date
fixed by the Bank was arbitrary and, therefore, the same was liable to be
declared as such by the High Court.
learned counsel appearing on behalf of the Bank, however, has drawn our
attention to the counter affidavit filed in Civil Appeal No. 4597 of 2002
wherein inter alia it has been averred:
That the document at the Serial No. 5 (under the heading "Extract of
Seniority List as on 31.12.1985") of the additional documents sought to be
brought on record by the petitioners is also grossly misleading as it
suppresses the material fact known to the petitioners that against the names of
persons at Serial No. 52 and 67 the said list erroneously mentioned 'ST' which
error was subsequently corrected after due notice to the concerned persons Shri
Pendalwar Shivaji Ramanna and Shri Tehra Kiransinh Gangusingh. Accordingly,
these persons were called for the interview for promotion in the year 1990 as
General Category candidates." It was urged that all the requisite
procedures for dereservation had been complied with and in that view of the
matter the High Court committed a manifest error in passing the impugned
learned counsel would further submit that keeping in view the present policy
decision of the Bank, it is not possible to make any further appointment
adjusting the 'Promotees' and the eligible members of the Association and in
this behalf our attention has been drawn to the following statements made in
paragraph 3 of the counter affidavit:
In the instant Special Leave Petition it is erroneously pleaded that the ST
category employees can be considered for promotions to cadre of officers
without disturbing status of the petitioner as there are vacancies in the
officers' cadre. In this regard, it is respectfully submitted that although, it
is true that due to one or the other reasons certain officers ceased to work
with the respondent bank, but according to the Man Power Norms in Regional
Rural Banks' introduced by the Government of India, Ministry of Finance,
Department of Economic Affairs (Banking Division), New Delhi, vide its Order/
Memorandum, F.No. 3/(24)/99 RRB dated 22.1.2001 and adopted by the Board of
Directors of the respondent Bank, in the meeting dated 18.5.2001, there is no
shortfall in manpower in the officer grade, of the respondent Bank and, on the
contrary, there exists an excess manpower in the said grade.
further needs to be kindly considered by your Lordships that the accumulated
losses of the respondent bank are to the tune of Rs. 53.47 cores as on
31.3.2001. In view of the implementation of manpower planning norms and in view
of the accumulated losses of the respondent Bank, it is not possible for the
respondent Bank to add manpower in officer cadre, without getting the
corresponding number of posts vacated, inter alia, by reversion of the
respondent Bank is a Regional Rural Bank established under the Regional Rural
Banks Act, 1976 of which the Bank of Maharashtra is the sponsor Bank. It
appears that in terms of an award issued by the National Industrial Tribunal in
1991 which was given retrospective effect from 1.9.1987, 23 vacancies in
officers cadre (Junior Management-I) and 45 vacancies in Field Supervisors
cadre (which have since been merged in the officers' cadre) were identified for
being filled in by internal promotion from amongst the eligible Field
Supervisors and clerks working in the Bank. It is also not in dispute that promotion
to the said posts are governed under the Regional Rural Banks (Appointment
& Promotion of Officers and other Employees) Rules 1981 (The Rules).
furthermore not in dispute that for the purpose of effecting promotions to the
post of Field Supervisor or Officer, the following conditions laid down in the
Rules were required to be taken into consideration:
Senior Clerk-cum-Cashier with minimum of four years service as Senior
Clerk-cum-Cashier. OR (b) Six years service either as confirmed Junior
Clerk-cum-Cashier or Junior Clerk- cum-Typist or Stenographer or Steno Typist
or as a confirmed Senior or Junior Clerk-cum- Cashier, as the case may be. For
the first six years after the year Bank, post of Field Supervisor will be
filled only by direct recruitment and the promotion quota of these posts will
be notionally carried forward and made good by promotions in the subsequent
years. From the year in which the back log, if any, in the promotion quota is
wiped out, the stipulated quota of fifty percent recruitment from the open
market and fifty percent by promotion will be adhered to.
For Promotions: Confirmed Field Supervisor with a minimum of five years service
as Field Supervisor. The above condition of minimum service is relaxable as
Regional Rural Banks which have not completed three years of existence after
their year of establishment will fill up all vacancies in the officer cadre
only by direct recruitment.
Regional rural banks which have completed three years of existence after the
year of their establishment but have not completed five years, may, but only with
prior approval of National Bank, consider for promotion confirmed Field
Supervisors having a minimum of three years experience in that capacity.
However, if even after this relaxation suitable candidates are not available,
the vacancies to be filled by direct recruitment and the vacancies so filled
will be notionally carried forward to the subsequent years till the back log,
if any, is cleared.
the stipulated quota of fifty per cent from open market and fifty per cent by
promotion will be adhered to".
candidates eligible for promotion were subjected to an interview by the
Selection Committee constituted in terms of Rule 10(1)(b) of the Rules pursuant
whereto and in furtherance whereof the appointments in questions were made.
appears that the respondent Bank initially reserved 8 posts of 'officers' for
the Scheduled Tribe Candidates and 13 thereof for the posts of 'Supervisors'.
Chapter VII of the brochure admittedly laid down the procedure for dereservation.
Clause 7.6 provides for carry forward of reservations whereas Clause 7.7 deals
with exchange of reservation between SC/ST and vice-versa. Clause 7.9 provides
for reservation and carry forwarding of a single vacancy reserved for scheduled
caste or scheduled tribe candidates which may be filled up by a general
candidate, as the case may be.
regard difficulty in carrying out the policy of reservation it appears that the
Central Government by a letter dated 19th September, 1989 advised the respondent Bank to
approach the Sponsor Bank for guidance and only in the event a specific issue
arises, a reference was required to be made to the Government through the
Sponsor Bank. The Bank of Maharashtra admittedly having been approached to give
approval for the proposal of dereservation by the respondent Bank having regard
to non- availability of any Scheduled Tribe candidate for promotion by a letter
dated 18th August, 1990 granted such permission and forwarded the proposal for
final approval of the Government of India. The NABARD also granted approval to
the proposal of dereservation by its letter dated 31st August, 1990. As
indicated hereinbefore, the Central Government had also approved the same.
OF ABSENCE OF DERESERVATION AS AN ISSUE:
of dereservation was admittedly not in issue before the High Court. In the
aforementioned fact situation, we are of the opinion that the High Court in
absence of any specific challenge to the dereservation policy adopted by the
Bank could not have gone into the said question. It is true that the High Court
is entitled to take into consideration the subsequent events, but the same can
only be a relevant factor for the purpose of moulding the reliefs. But while moulding
such reliefs, the High Court could neither have considered grant of a relief wherefor
no factual foundation existed was laid in the pleadings of the parties.
been accepted at the Bar that no factual foundation was laid down in the writ
petition before the High Court as to whether the Bank complied the requirement
of Clause 7.7 of the procedure providing for exchange of reservation between
SC/ST and vice-versa.
question as to whether any eligible scheduled caste candidate was available for
promotion to the post of Officer or not is essentially a question of fact. It
was, thus, not open to the High Court to advert to the said question.
OF ABSENCE OF THE APPELLANTS AS PARTIES:
true that the order of promotion was in question in Writ Petition No. 1551 of
1990 at the instance of one Ashok but even in the said writ petition the Promotees
were not impleaded as parties.
the case of the Association, even in the writ petition filed by Ashok, the
order of dereservation passed by Union of India or NABARD or the Sponsor Bank
had not been questioned. Admittedly, Union of India or NABARD were not parties
in the said writ petitions.
order issued against a person without impleading him as a party and, thus,
without giving him an opportunity of hearing must be held to be bad in law. The
appellants herein, keeping in view the fact that by reason of the impugned
direction the orders of promotion effected in their favour had been directed to
be withdrawn indisputably were necessary parties. In their absence, therefore,
the writ petition could not have been effectively adjudicated upon. In absence
of the 'Promotees' as parties, therefore, it was not permissible for the High
Court to issue the directions by reason of the impugned judgment.
not the contention of the Association that procedures for effecting promotion
had not been followed. The promotees were, admittedly eligible for promotion
and they had, thus, legally been promoted. The only question which was raised
related to compliance on the part of the Bank as regard the procedure of dereservation.
High Court, therefore, was required to consider the said question only in the event,
the factual foundation therefor had been laid down in the writ petition. The
Association did not file even any supplementary affidavit or an application for
amendment of the writ petition praying for a relief as regard quashing of the
order of dereservation or bringing the appellants herein as parties thereto in
the writ petition. In absence of any challenge to the order of dereservation
and in absence of the Promotees having been impleaded as parties, the impugned
directions could not have been issued by the High Court, more so when the
appellants herein had not been given an opportunity of being heard. Once dereservation
is made, the vacancies became available for being filled up by general category
candidates and, thus, therefor the respondent Bank was not required to
reexamine the question of availability of the Scheduled Tribe candidates for
appointment on dereserved vacancies. The view taken by the High Court that even
after dereservation was made, the Bank was required to reexamine the
availability of ST candidates on the dereserved vacancies, was, therefore, not
correct particularly when the High Court itself found that the cut off date
being 31.8.1989 was correctly fixed by the Bank.
now well-settled that for the purpose of effecting promotion, the employer is
required to fix a date for the purpose of effecting promotion and, thus, unless
cut off date so fixed is held to be arbitrary or unreasonable, the same cannot
be set aside as offending Article 14 of the Constitution of India. In the
instant case, the cut off date so fixed having regard to the directions
contained by the National Industrial Tribunal which had been given a retrospective
effect cannot be said to be arbitrary, irrational, whimsical or capricious.
learned counsel could not point out as to how the said date can be said to be
arbitrary and, thus, violative of Article 14 of the Constitution of India.
not in dispute that a cut-off date can be provided in terms of the provisions
of the statute or executive order. In University Grants Commission v. Sadhana Chaudhary
& Ors., [(1996) 10 SCC 536]. It has been observed :
It is settled law that the choice of a date as a basis for classification
cannot always be dubbed as arbitrary even if no particular reason is
forthcoming for the choice unless it is shown to be capricious or whimsical in
the circumstances. When it is seen that a line or a point there must be and
there is no mathematical or logical way of fixing it precisely, the decision of
the legislature or its delegate must be accepted unless it can be said that it
is very wide off the reasonable mark. (See: Union of India v. Parameswaran
Match Works (1975) 1 SCC 305: (1975) 2 SCR 573 at p. 579 and Sushma Sharma (Dr)
v. State of Rajasthan (1985 Supp SCC 45 : 1985 SCC (L&S) 565: (1985) 3 SCR
243) at p. 269.) If a cut-off date can be fixed, indisputably those who fall
within the purview thereof would form a separate class. Such a classification
has a reasonable nexus with the object which the decision of the Bank to
promote its employee seeks to achieve. Such classifications would neither fall
within the category of creating a class within a class or an artificial
classification so as to offend Article 14 of the Constitution of India.
such a cut-off date is fixed, a question may arise as to why a person would
suffer only because he comes within the wrong side of the cut-off date but, the
fact that some persons or a section of society would face hardship, by itself
cannot be a ground for holding that the cut-off date so fixed is ultra vires
Article 14 of the Constitution.
State of W.B. v. Monotosh Roy & Anr. [(1999) 2 SCC 71], it was held : -
"13. In All India Reserve Bank Retired Officers' Association v. Union of
India, 1992 Supp (1) SCC 664 : 1992 SCC (L&S) 517 : (1992) 19 ATC 856 a
Bench of this Court distinguished the judgment in Nakara, (1983) 1 SCC 305 :
1983 SCC (L&S) 145 and pointed out that it is for the Government to fix a
cut-off date in the case of introducing a new pension scheme. The Court negatived
the claim of the persons who had retired prior to the cut-off date and had
collected their retiral benefits from the employer. A similar view was taken in
Union of India v. P.N. Menon, (1994) 4 SCC 68 : 1994 SCC (L&S) 860 : (1994)
27 ATC 515. In State of Rajasthan v. Amrit Lal Gandhi (1997) 2 SCC 342 : 1997
SCC (L&S) 512 : JT (1997) 1 SC 421 the ruling in P.N. Menon case (supra)
was followed and it was reiterated that in matters of revising the pensionary
benefits and even in respect of revision of scales of pay, a cut-off date on
some rational or reasonable basis has to be fixed for extending the benefits.
State of U.P. v. Jogendra Singh (1998) 1 SCC 449 : 1998 SCC (L&S) 300 a
Division Bench of this Court held that liberalized provisions introduced after
an employee's retirement with regard to retiral benefits cannot be availed of
by such an employee. In that case the employee retired voluntarily on
12-4-1976. Later on, the statutory rules were amended by Notification dated
18-11-1976 granting benefit of additional qualifying service in case of
voluntary retirement. The Court held that the employee was not entitled to get
the benefit of the liberalized provision which came into existence after his
retirement. A similar ruling was rendered in V. Kasturi v. Managing Director,
State Bank of India (1998) 8 SCC 30 : JT (1998) 7 SC 147.
The present case will be governed squarely by the last two rulings referred to
above. We have no doubt whatever that the first respondent is not entitled to
the relief prayed for by him in the writ petition " In Vice Chairman
& Managing Director, A.P.S.I.D.C. Ltd. & Anr. off' date fixed for the
purpose of implementation of Voluntary Retirement Scheme, it was said :
employee may continue in service in the interregnum by virtue of clause (i) but
that cannot alter the date on which the benefits that were due to an employee
under the VRS to be calculated. Clause (c) itself indicates that any increase
in salary after the cut off point/date cannot be taken into consideration for
the purpose of calculation of payments to which an employee is entitled under
the VRS." The High Court in its impugned judgment has arrived at a finding
of fact that the Association had failed to prove any malice on the part of the
authorities of the Bank in fixing the cut off date. A plea of malice as is
well-known must be specifically pleaded and proved.
such a requirement has not been complied with by the writ petitioners.
upshot of the above discussions is that the High Court could not have issued
the impugned directions in absence of the promotees having not been impleaded
as parties. Furthermore, the order of dereservation was not under challenge.
these appeals, this Court is not concerned with the effect of the orders passed
by the High court in the writ petitions filed by 13 Scheduled Tribe candidates.
We must, however, notice that it has been stated at the Bar that the said writ
petitions had been disposed of only relying on or on the basis of the impugned
judgment. What would be the effect of the orders passed in the said writ
petitions is not a matter which we have been called upon to determine. Suffice
it, however, to point out that in relation to the said orders also the
requisite consequences of setting aside the judgment of the High Court must
ensue and it would be open to the High Court to pass appropriate orders in
accordance with law in appropriate proceedings.
of Mr. Ganpule to the effect that both the appellants and the Scheduled Tribe
candidates can be adjusted in view of the fact that 29 posts are lying vacant
is also not a matter which can be decided by this Court for the first time in
these appeals. As noticed hereinbefore, the Bank had categorically stated that
having regard to the changed situation, they are not in a position to make any
further promotions to the post of 'officers'. This Court, in the aforementioned
situation, cannot, thus, issue any directions upon the Bank to change its
policy decision and accommodate the Scheduled Tribe candidates in violation of
its own policy decision. It is for the Bank, the Sponsor Bank as also NABARD to
take an appropriate decision in this matter.
the reasons aforementioned, the impugned judgments of the High Court cannot be
sustained which are set aside accordingly.
Appeal Nos. 4593-4594 and 4595-4596 of 2002 are allowed;
Civil Appeal No.4597 of 2002 is dismissed. No costs.