Order
1. This writ petition under Article 32 of the Constitution has been filed challenging the validity of the Resolution dated 29-8-1987 whereunder the respondent-Corporation had resolved to implement the roster system and promotion of Scheduled Caste and Scheduled Tribe employees as per the directives and Resolution of the Gujarat Government on 31-1-1976 to give effect to the policy of reservation in promotions in all Class I, Class II and Class III 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 there 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 Caste and Scheduled Tribe employees should be adjudged by the Departmental Promotion Committee separately in regard to their fitness. In para 4 of the Resolution, it was stated that these orders would take effect from 1-1-1976.
2. On 30-4-1984, 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, there 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 orders for filling up the posts as per the percentage for Scheduled Castes and Scheduled 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 authorised the Managing Director to follow the roster system scrupulously as per the directions of the Government in IMPD, vide letter dated 29-9-1983 for Class I to Class IV employees which are as under:
“(1) For SC/ST
(i) For direct recruitment
Class I up to Senior Executive's level and Class II, III and IV employees.
(ii) For promotion
Class I up to 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.”
3. 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.
4. 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 recruitment and promotion can be made. But the question of retrospectivity of 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 of representation in all classes and grades of service, where there is no element of direct recruitment cannot be achieved. Obviously, therefore, Article 16(4-A) was brought on the Constitution by the Constitution (77th Amendment) Act, after the majority judgment of this Court by a Bench of 9 Judges in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217, (1992) 22 ATC 385. The Preamble of the Constitution and Article 38 accord social and economic justice as fundamental rights to all people in all institutions of national level. Article 46 enjoins the State to accord social and economic justice to the Scheduled Castes and Scheduled Tribes. Article 51-A 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(4-A), 46 and 335 and the other related articles is to give effect to the above constitutional objectives.
5. 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 anti-reservationists in the State, the Gujarat State Government had constituted an 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 of the recommendations of the Sadhwani Committee Nos. 5, 6, 9, 10 and 11 will have prospective effect.”
6. 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 30-4-1984. The subsequent impugned Resolution giving effect to the roster from 1-1-1976, therefore, would not be justified in the light of the Resolution passed by the Government on 18-8-1985 referred to earlier.
7. 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 given to them, there shall be a direction that the Corporation would keep operating the roster w.e.f 30-4-1984 and onwards.
8. The writ petition is disposed of accordingly. No costs.