Prayer:

W.A Nos. 304, 324 and 342 of 1998 have been filed under Clause 15 of the Letters Patent, against the common order dated 2.2.1998 passed by a learned Single Judge of this Court respectively in W.P Nos. 7735, 1747 and 11366 of 1997.

W.P No. 4599 of 1998 has been filed under Article 226 of the Constitution, praying to issue a Writ of Certiorarified Mandamus to call for the records of the 2nd respondent in Memo No. 91/97, dated 22.11.1997 and quash the same and for a direction to the respondent to give reservation in promotions to the Officers from Scale I to Scale VII by following the instructions issued by the Government of India in Office Memorandum No. 36012/18/95, Ministry of Personnel and Training dated 13.8.1997

W.P No. 7031 of 1998 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the records of the 3rd respondent in Memo. Ref. No. CIR. 99:ZOCH:PD)S. 05.98, dated 22.4.1998 and quash the same and direct the respondent to give promotion for Schedule Caste Schedule Tribes Employees in the category of Junior Management Grade Scale-I to TEG Scale-VII by following the Government of India instructions issued in Office Memorandum No. 36012/18/95 Ministry of Personnel Public Grievances and Pensions Departments of Personnel and Training inforcement of Article 16(4-A) of the Constitution of India.

JUDGMENT

Elipe Dharma Rao, J.

1. Since the issue involved in all these matters is common, they all are heard together and are being disposed of by this common judgment.

2. In all the matters, the appellants and the petitioners are the SC/ST Employees Union of various Banks. It is their case that the SC/ST officers in the Banks are entitled to get 22½% reservation i.e 15% reservation for S.C and 7½ reservation for ST in promotion as in any other Union of India organisation; that in spite of repeated directions and instructions from Government of India to Banks, they are deliberately ignoring the directions and thereby they are acting in a manner prejudicial to the rights of the SC/ST employees; that whenever vacancies arise, the respondent-Banks used to declare in notification, without specifying any reservation to the SC/ST officers; that as per the Promotion Policy for Officers Agreement, which was entered into between the UCO Bank Management and All India UCO Bank Officers Federation at Calcutta on 26.8.1992, guidelines/directives/administrative instructions were issued by the Government of India from time to time regarding relaxation, concession, reservation, etc. for SC/ST, physically handicapped, ex-servicemen and other special categories of officers in the matter of scale to scale promotion within the officers grade will be deemed to be a part of the policy and given effect to accordingly and therefore, according to the petitioners, this is impliedly coming within the scope of the amendment to the Constitution whereby Article 16(4-A) was incorporated and thereafter, the petitioners sent a representation on 28.1.1997 requesting the Banks to make reservation to SC/ST officers in the inter-scale promotion, but the respondents have not taken any step to reserve the vacancies for SC/ST officers and they have also not followed the relevant circulars issued by the Central Government and their own guidelines in the matter of Promotion Policy. The general grievance of the petitioners is that in spite of amendment to Constitution, incorporating Article 16(4-A), the respondents are not following the same. They have also submitted that there is inadequate representation in various categories of officers belonging to SC/ST and therefore, they are entitled to implement the Promotion Policy taking into consideration the inadequacy of representation among the top grade officers.

3. The respondents have stiffly opposed the claim of the petitioners contending that the provision under Article 16(4-A) of the Constitution does not confer any right on any citizen to demand such reservation, nor is there a corresponding Constitutional duty imposed on the State to make such a reservation, since it is only an enabling provision which confers discretionary power on the State to make provision for reservation in matters of promotion to any class or classes of posts in the service in favour of SC/ST, if the State is of opinion that they are not adequately represented in the service. According to them, the promotion to the Officers Grade is on the basis of merit-cum-seniority to which reservation policy cannot be made applicable. It has been the case of the respondents that the reservation is applicable only in the first instance where it relates to promotion from clerical grade to the lowest rank in the Officers Grade and the present promotion is from the lowest to the next scale i.e Middle Management Scale-II and therefore, the principle of reservation has no application and no direction has also been issued to the Banks to have reservation from Scale I to II. They also make reference to Office Memorandum No. 38012/6/83-East (SCT) dated 1.11.990 issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), Government of India, addressed to all the Ministries and Departments of Government of India including the Ministry of Finance (Banking Division) and held that there is no reservation within Group ‘A’ to posts.

4. At this juncture, we feel it apt to mention that this Office Memorandum on which much reliance is being placed by the respondents-Banks was issued on 1.11.1990, much prior to insertion of Article 16(4-A), by the Constitution 77th Amendment, w.e.f 17.6.1995

5. Though from the year 1955, the Scheduled Caste and Scheduled Tribe employees were enjoying reservations in promotions, in Indra Sawhney v. Union of India, 1992 Supp 3 SCC 217: AIR 1993 SC 477, dated 16.11.1992, the Nine Judge Bench of the Honourable Apex Court has held that the ‘reservation under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matters of promotion.’

6. It is, in these circumstances, the Union of India, in order to better serve the purpose and spirit of Article 16 and to protect the interest of weaker sections, has inserted Clause 4-A to Article 16 by the Constitution 77th Amendment, with effect from 17.6.1995, which reads as follows:

“Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

7. After this amendment, in Union of India v. Virpal Singh Chauhan, 1995 (6) SCC 684, the Honourable Apex Court has held that ‘a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority and as such, consequential seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position.’

8. Thereupon, the Government, in order to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes, thought it fit to further amend Article 16(4-A), to provide for consequential seniority in the case of promotion by virtue of rule of reservation and to give retrospective effect to the proposed Constitutional amendment to Article 16(4-A) with effect from the date of coming into force of Article 16(4-A) i.e from 17.6.1995 Accordingly, by the Constitution (Eighty-fifth) Amendment Act, 2001, the words ‘in matters of promotion to any class’ in Article 16(4-A), were substituted by the words ‘in matters of promotion, with consequential seniority, to any class’.

9. Thus, reading the Constitution (77th Amendment) Act, 1995 with the Constitution (85th Amendment) Act, 2001, Article 16(4-A) now reads as follows:

“Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

10. Thus, Clause 4-A of Article 16 is carved out of Clause (4) of Article 16 and this Article 16(4-A) provides benefit of reservation in promotion only to SCs and STs.

11. The Constitutional validity of Articles 16(4-A) and 16(4-B) was challenged before the Honourable Apex Court in M. Nagaraj and others v. Union of India and others, 2006 (8) SCC 212, and the Constitutional Bench of the Honourable Apex Court in the said judgment has held as follows:

“121. The impugned Constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the Constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K Sabharwal.

122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all Constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.”

12. Thus, this Constitutional Bench judgment of the Honourable Apex Court is restoring the position of reservation in promotions to SC/ST which was in vogue prior to Indra Sawhney case.

13. From the materials placed on record, we are able to see that Regulation No. 1.1 of the Promotion Policy for Officers of the UCO Bank reads as follows:

“The Promotion Policy for officers in the Bank has been designed in the context of the guidelines issued by the Government from time to time under the Officers Service Regulations.”

Therefore, as per this Policy, the guidelines issued by the Government in this regard are binding on the UCO Bank. It has also been admitted on the part of the other Banks that similar is the position with regard to them also. Further more, from the materials placed on record we are also able to see that the Ministry of Finance, Government of India, is the nodal Ministry for framing policy on reservation for financial institutions/Banks.

14. Regulation 22 of the Promotion Policy for Officers of the UCO Bank reads as follows:

“22. Concessions/Relaxations, etc. for SC/ST, Physically Handicapped, Ex-servicemen and Other categories of officers:

22.1 The guidelines/directives/administrative instructions issued by the Government of India from time to time regarding relaxation/concession/reservation, etc. for SC/ST, physically handicapped, Ex-servicemen and such other special categories of officers in the matter of scale to scale promotions within the Officers' Grade shall be deemed to be a part of the policy and given effect to accordingly.”

15. Regulation No. 1.1 of the Promotion Policy for Officers of the UCO Bank reads as follows:

“The Promotion Policy for officers in the Bank has been designed in the context of the guidelines issued by the Government from time to time under the Officers' Service Regulations.”

16. Therefore, as per this Policy, the guidelines issued by the Government of India in this regard are binding on the UCO Bank. It has also been admitted on the part of the other Banks that similar is the position with regard to them also. Further more, from the materials placed on record we are also able to see that the Ministry of Finance, Government of India, is the nodal Ministry for framing policy on reservation for financial institutions/Banks. The strong contention of the petitioners and appellants in all these matters is that even though the Government of India has time and again instructed the Banks to apply rule of reservation in promotions, the same has not at all been heeded to by the Banks, and thus acted in a much prejudicial manner to the interest of the depressed classes of the Society viz. SC/ST.

17. The learned Single Judge, in his common order, while rejecting the case of the petitioners/appellants, has repeatedly observed that no specific notification regarding the reservation in the higher category of posts has been filed before the Court. But, in the cases on hand, a notification issued by the Government of India bearing No. 36012/18/95-Estt.(Res.) Pt.II, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, Dated 13.8.1997 has been filed at Page No. 39 of the typed set of papers, the same is extracted hereunder for easy reference:

“The undersigned is directed to invite attention to this Department's O.M No. 36012/37/93-Estt. (SCT), dated 19.8.1993 clarifying that the Supreme Court had, in the Indra Sawhney case, permitted the reservation, for the Scheduled Castes and the Scheduled Tribes, in promotion, to continue for a period of five years from 16.11.1992

2. Consequent to the judgment in Indra Sawhney's case, the Constitution was amended by the Constitution (Seventy-Seventh Amendment) Act, 1995 and Article 16(4-A) was incorporated in the Constitution. This Article enables the State to provide for reservation, in matters of promotion, in favour of the Scheduled Castes and the Scheduled Tribes, which in the opinion of the State are not adequately represented in the Services under the State.

3. In pursuance of Article 16(4-A), it has been decided to continue the reservation in promotion, as at present, for the Scheduled Castes and the Scheduled Tribes in the services/posts under the Central Government beyond 15.11.1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation whereafter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories.

4. All Ministries/Departments are requested to urgently bring these instructions to the notice of all their attached/subordinate offices as also the Public Sector Undertakings and Statutory Bodies, etc.”

18. This copy was sent to all Ministries/Departments of the Government of India and Union Public Service Commission and Staff Selection Commission, New Delhi. There is also no dispute that the Ministry of Finance is the nodal Ministry for framing policy on reservation for financial institutions/Banks. Therefore, it follows that the Government of India has given clear instructions to all the Ministries/Departments, including the Ministry of Finance to implement reservation in promotions to SC/ST employees. It is an admitted case of the respondents that they are implementing the reservation upto the Ministerial staff, whereas when it comes to the scale posts, they are not following the rule of reservation.

19. At this juncture, it is proper to mention that Article 15 of the Constitution deals with discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Article 16(1) guarantees equality of opportunity in matters of public employment. The term ‘Backward Classes’ is a comprehensive one, comprising four sections of our society viz. Scheduled Castes, Scheduled Tribes, Other Backward Classes and Denotified Communities. These sections constitute the underprivileged classes of the country, for whom special treatment is accorded in our Constitution.

20. Articles 15(4) and 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking the equality clause, the makers of our Constitution thought of protective discrimination and affirmative action. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes and Other Backward Class people as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness and an affirmative action has been extensively developed in our country to redress the wrongs of the past.

21. The weaker sections of the society are victims of social injustice, practice of untouchability and segregation from the mainstream of national life. The object of protective discrimination is to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person in which justice-social, economic and political are enjoyed by them in equal measure with the general members of the society. Dr. B.R Ambedkar in his closing speech, in reply to the Debates in the Constituent Assembly, had stated that ‘the edifice in the Constitution was built up with laborious effect’. The provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Article 16(4) is specifically designed to give a due share in the State power to those who have remained out of it mainly on account of their social, educational and economic backwardness. Reservation affords backward class of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. Article 16(4-A) was incorporated, thereby introducing an enabling provision for providing reservation in the matter of promotion. Backwardness and inadequacy of representation are the Constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

22. In the cases on hand, the appellants have produced the statistics showing the strength of SC/ST officers in various Grade/scale cadres. The statistics provided with regard to Central Bank of India from Scale I to VII clearly show that there is no representation, leave alone adequate representation, for SC/ST officers from the years 1997 to 2008. A consolidated statement for the promotions from the year 1997 to 2008 in MMG III-IV, SMG IV-V; SMG V-VI; TMG VI-TMG VII would depict a bleak picture regarding the entire aspect since least or no presentation for SC/ST could be seen glaringly. As per these calculations for the total promotions of 20 posts, only one SC candidate got promotion in the year 2007 and for a total promotions of 171, within these categories, only nine SC candidates got promotion. In promotions effected for the years 1997 and 2002, respectively for 19 posts and six posts, no SC/ST candidate was offered promotion. In the year 1999, for a total number of 126 posts, only one SC candidate was given promotion. Likewise, for a whopping 308 number of promotions in the year 2006, a meagre 36 candidates of SC/ST were promoted.

23. At this juncture, we feel it apt to mention that when we have directed the UCO Bank to submit the data for each category from Scale I to VII, they have fled a data showing the list of sub-staff to clerk, which is not the issue on hand and they have not provided for the data regarding the persons who were promoted from each category from Scale I to Scale VII in the officer category. Therefore, the UCO Bank SC/ST Employees' Association has submitted a detailed statement, which shows huge short fall in respect of the SC/ST candidates in the promotions effected by UCO Bank from the year 1997 to 2008. As per the scale wise representation of SC/ST officers as on 31.3.2008 in the UCO Bank, in Scale IV Posts there is a short fall of 50 SC officers and 31 ST officers; in Scale V posts, there is a short fall of 10 SC officers and 7 ST officers; in Scale VI, there is a short fall of 5 SC officers and 2 ST officers and in Scale VII posts, there is a short fall of 3 SC officers and one ST officer.

24. Had the spirit of Article 16(4-A) been carried out properly, as has even been directed by Government of India to the Banks, at all stages, there would have been adequate representation for these reserved category candidates and since the respondents-Banks have paid their deaf ears to such directions issued by the Union of India, there is no adequate representation for these underprivileged classes of the society in the promotions effected by the Banks. This defeats the very purpose of ‘reservation’ enshrined by the Constitution of India. We must remember that even the SC/ST candidates who are now serving the officer cadres in the Banks, have been promoted only by virtue of their long service and merit and not by availing the rule of reservation in promotion, as has been provided for under Article 16(4-A) of the Constitution. Even though the Regulations of these Banks provide that ‘the promotions to all grades of officers in the Bank shall be made in accordance with the policy laid down by the Board from time to time, having regard to the guidelines of the Government, if any,’ in spite of specific instructions from the Government of India, it has not been implemented, causing much prejudice to the employees of SC/ST communities.

25. There is no dispute from any quarter about the fact that a notification was already issued by the Government of India bearing No. 36012/18/95-Estt.(Res.) Pt.II, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, Dated 13.8.1997 and the same has been filed at Page No. 39 of the typed set of papers filed along with these matters. When such is the position, Mr. M. Sahu, the Under Secretary to the Ministry of Finance, Department of Financial Services, Government of India, New Delhi has filed a common counter affidavit in all these matters, repeatedly relying on the Indra Sawhney judgment of the Honourable Apex Court reported in AIR 1993 SC 477, ignoring the fact that only in supercession of which Constitutional 77th Amendment was brought in by the Legislature in its wisdom, by including Article 16(4-A) to the Constitution with effect from 17.6.1995 Therefore, the said common counter affidavit filed on behalf of the Government of India, has no relevance.

26. The other factor which we want to point out is that when we wanted particulars of adequate representation of SC/ST employees in various cadres, an impression is sought to be given on the part of the Banks as if these persons working in different cadres in the Banks are inefficient. Further, relying on Article 335 of the Constitution, they have argued that introduction of rule of reservation in promotions would reduce the efficiency of administration of Banks. We are unable to understand such a sweeping and generalised argument advanced on the part of the Banks, as if all the employees of these underprivileged classes are inefficient and not suitable for promotion. When the Union of India has directed the Banks to follow the rule of reservation in promotions in all cadres, as early as in the year 1997, there is no impediment for the Banks to implement the same. However, for no better reason to be appreciated, the Banks are adamant in implementing the said OM, issued by the Government of India.

27. There cannot be any dispute regarding the mandate of Article 335, which says that ‘the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. But, it must also be mentioned that a Proviso to this Article was inserted by Constitution 82nd Amendment, w.e.f 8.9.2000, which provides that ‘nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State’. Thus, wide powers are given to the State even to relax the qualifying marks in any examination or lowering the standards of evaluation even for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State. When Constitution has given such extra protection to the underprivileged communities so as to enjoy equal opportunities as guaranteed by the Constitution, in our considered opinion, the Banks are not justified in sleeping over the matter of providing reservations in promotions for a decade with no good reason to offer. By this, we want to insist that while maintaining the efficiency of administration, the Banks can very well implement the OM, dated 13.8.1997 issued by the Government of India and they can also press into service the proviso to Article 335 of the Constitution, wherever and whenever it is so required, to meet the ends of justice.

For all the above reasons and discussions, we find complete justification in the prayer of the writ petitioners/appellants in all these matters and therefore, all these matters deserve to be allowed. Accordingly, the order of the learned Single Judge is set aside and all the Writ Appeals and Writ Petitions stand allowed. The respondent Banks are directed to implement OM, dated 13.8.1997 issued by the Government of India within a period of eight weeks from the date of receipt of a copy of this order, keeping in view the observations made by us supra.

Connected Miscellaneous Petitions are closed. No costs.

RSN