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PETITIONER:

NATIONAL FEDERATION OF S.B.I. & ORS. ETC.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT10/03/1995

BENCH:

JEEVAN REDDY, B.P. (J)

BENCH:

JEEVAN REDDY, B.P. (J)

SAHAI, R.M. (J)

SEN, S.C. (J)

CITATION:

1995 AIR 1457 1995 SCC (3) 532

JT 1995 (3) 336 1995 SCALE (2)282

ACT:

HEADNOTE:

JUDGMENT:

B.P. JEEVAN REDDY, J.:

1. The precise nature and character of the concession

provided to Scheduled Castes and Scheduled Tribes in the

matter of promotions within Class-I in the service of the

public sector banks falls for consideration in this batch of

writ petitions. The writ petitions are filed by As-

sociations of Scheduled Castes' and Scheduled Tribes'

employees working in several public sector banks. The

reliefs sought for in all these writ petitions are broadly

identical. For the sake of convenience, we may refer to the

reliefs sought for in Writ Petition (C) No.896 of 1990 filed

by the National Federation of State Bank of India Scheduled

Castes/Scheduled Tribes Employees. They are (a) to issue a

writ of mandamus directing the respondent (State Bank of

India) to implement die reservation policy by maintaining

the roster system; (b) to direct the respondents (Union of

India, State Bank of India and the Chairman of the Indian

Banks Association) to fill up the backlog of unfilled

vacancies since 1978 by applying the carry-forward rule in

all grades and scales with consequential benefits; (c) to

restrain the second respondent (State Bank of India) from

making any promotion from Scale-I to Middle Management

Scale-II and Middle Management Grade-III, upto Scale-VII,

without following the principle of reservation; (d) to grant

promotion to Scheduled Castes/Scheduled Tribes

employees/officers with retrospective effect with conse-

quential benefits of salaries and allowances; and (e) to

carry out the aforesaid directions within a prescribed time-

frame.

2. For a proper appreciation of the issues arising herein,

it is necessary to refer to the orders issued by the Govern-

338

ment of India on the subject of concessions to Scheduled

Castes/Scheduled Tribes employees in the matter of promo-

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tions within Class-I service (which are to be filled by

promotion) from time to time. Though the question that

ultimately falls for consideration lies in a short compass,

a reference to those orders and to decisions of this Court

on the subject has become necessary.

3. By Office Memorandum No. 1/10/ 61-Estt.(D) dated

November 8, 1963 issued by the Ministry of Home Affairs,

reservation at 12 1/2 per cent and five per cent of the

vacancies was provided for Scheduled Castes and Scheduled

Tribes candidates respectively in Class-III and Class-IV

posts filled by promotion based on (i) selection or (ii) the

results of competitive examinations limited to departmental

candidates, in grades or services to which there was no

direct recruitment. The Memorandum stated that there would

be no reservation for Scheduled Castes/Scheduled Tribes in

appointments made by promotion to a Class-II or to a higher

service or post, irrespective of the method of appointment

the aforesaid policy was revised and fresh orders issued in

Office Memorandum No.1/12/67-Estt.(C) dated 11th July, 1968

issued by the Ministry of Home Affairs. This Memorandum

provided for several matters of which it is necessary to

notice only the provision made under "(B) promotion by

selection method: (a) Class-I and II appointments". It pro-

vided that in promotion by selection inter alia from Class-

II to the lowest rung category in Class-I, the procedure

prescribed therein shall be followed, viz, (i) in the case

of eligible Scheduled Caste and Scheduled Tribes candidates,

the grading given to them shall be upgraded by one stage.

This concession shall, however, be confined to only twenty

five per cent of the total vacancies in a particular grade

or post filled in a year; (ii) "Those Scheduled

Castes/Scheduled Tribes employees who are senior enough in

the zone of consideration so as to be within the number of

vacancies for which the Select List has to be drawn, should

be included in the Select list, if they are not considered

unfit for promotion and should also be given one grading

higher than the grading otherwise assignable to them on the

basis of their record of service and their place in the

Select List determined on the basis of this higher

categorisation".

4. The orders in Memorandum dated July II, 1968 were

supplemented by orders issued on March 26, 1970 which is the

one which falls for our consideration. Having regard to its

crucial relevance, it would be appropriate to set out the

Office Memorandum dated March 26, 1970 in

full:

"Ministry of Home Affairs O.M.No. 1/9/ 69-

Est(SCT), Dated 26th March, 1970.

Subject:- Concessions to Scheduled Castes and

Scheduled Tribes in posts filled by promotion

- Class-I Services/Posts

------------------

The question of increasing the representation

of Scheduled Castes and Scheduled Tribes

employees in Class-I services/ Posts under the

Government of India has been under the

consideration for some time past. In this

Ministry's O.M.No.1/12/ 67-Est(O) dated 11th

July, 1968, certain concessions have been

provided to Scheduled Castes and Scheduled

Tribes, inter alia in the matter of promotion

by selection to the lowest rung or category in

339

Class-I. It has now been decided that the

following concessions and facilities will be

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provided to Scheduled Castes and Scheduled

Tribes officers for their promotions within

Class-I also.

In promotion `by selection to posts within

Class-I, which carry an ultimate salary of

Rs.2250/- in the revised scale of pay per

month, or less, the Scheduled Castes/Scheduled

Tribes officers, who are senior enough in the

zone of consideration for promotion so as to

be within the number of vacancies for which

the select ha has to be drawn up, would be in-

cluded in the list provided they are not

considered unfit for promotion. Their po-

sition in the select list would however be the

same as assigned to them by, the Dopartmental

Promotion Committee on the basis of their

record of service. They would not be given

for this purpose, the grading higher than the

grading otherwise assignable to them on the

basis of their record of service.

In order to improve the chances of Scheduled

Castes/Scheduled Tribes officers for selection

to the higher categories of posts in Class-I,

it has further been decided that:

(i)Scheduled Castes/Scheduled Tribes officers

in Class-I services posts should be provided

with mom opportunities for institutional

training and for attending

seminars/symposia/conferences. Advantage

could in this connection be taken of the

training facilities available at the National

Academy of Administration, Mussorie, National

Police Academy, Mount Abu, Indian Institute of

Public Administration, New Delhi, the

Administrative Staff College, Hyderabad, etc.

and

(ii) It should be the special responsibility

of the immediate superior officers of die

Scheduled Castes/ Scheduled Tribes officers in

Class -I to give advice and guidance to the

latter to improve the quality of their work.

Ministries/Departments under whom Scheduled

Castes/Scheduled Tribes ClassI officers mught

be serving should ensure that these decisions

are implemented with expedition.

Ministries/Departments (or the Heads of

Departments) under whom such officers mught be

serving may specially watch the progress of

these officers so that all appropriate steps

are taken wherever necessary, to improve the

efficiency of these officers for the purpose

of their selection to higher posts.

4. The orders contained in paragraph-2

above take effect from the date of issue

except in respect of selections already made

prior to the issue of these orders.

5. Ministry of Finance, etc. art requested to

bring the above decisions to the notice of all

concerned.

6. In so far as persons serving in offices

under the Comptroller and Auditor General of

India are concerned, separate orders will

issue in due course."

(Emphasis added)

5. It is necessary to notice the significant features of

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this Office Memorandum. They are: (a) this Office Memoran-

dum does not speak of reservation; it speaks of conccessions

and facilities being provided to Scheduled Castes/Scheduled

Tribes; (b) whereas under the earlier Office Memorandum, a

certain concession was provided to Scheduled Castes/Sched-

uled Tribes candidates in the matter of promotion by

selection in the lowed rung or category in Class-I under

this memorandum concessions and facilities were provided to

Scheduled Castes/Scheduled Tribes officers for their

promotions within Class-I also. However, these concessions

340

and facilities were limited to posts within Class-I which

carry an ultimate salary of Rs.2250/- in the revised scale

of pay per month or less. The nature and character of

concession provided by this Office Memorandum is slightly

different from the one provided by Office Memorandum dated

July 11, 1968 for promotion to the lowest rung or category

in Class-I; (c) The concession provided to Scheduled Castes/

Scheduled Tribes officers is this-, those Scheduled

Castes/Scheduled Tribes officers who are senior enough in

the zone of consideration for promotion so as to be within

the number of vacancies for which the select list has to be

drawn up, would be included in the select list provided they

arc not considered unfit for promotion. (It is this formula,

if we can call it one, which has given rise to controversy

and varying interpretations and upon which we have to

pronounce - which aspect we shall deal with a little

later.); (d) the position of Scheduled Castes/Scheduled

Tribes candidates so included in the select list would,

however, be the same as assigned to them by the Departmental

Promotion Committee on the basis of their record of service.

(e) for the aforesaid purpose, the Scheduled

Castes/Scheduled Tribes candidates will not be given one

grading higher than the grading otherwise assignable to them

on the basis of their record of service.

6. The facilities provided in Para 3 of this Memorandum

include special training, advice and guidance. It is not

necessary to refer to them in detail. The said orders were

to take, effect from the date of issue of the said

Memorandum but the promotions already made were to remain

unaffected by it.

7. On December 23, 1974, Office Memorandum No.

1/10/74- Estt.(SCT) was issued from the Department of

Personnel, Training and Administrative Reforms (addressed to

all Ministries) on the subject of " concessions to

Scheduled Castes and Scheduled Tribes in posts filled by

promotion by selection - posts within Class I". This

Memorandum merely reiterated the concession contained in the

Memorandum dated March 26, 1970 and requested the Ministry

of Finance and other ministries to bring the said decision

to the notice of all concerned.

8. On December 31, 1977, the Ministry of Finance,

Department of Economic Affairs (Banking Division),

Government of India, addressed a letter to all the National

Banks as well as to the State Bank of India and its

subsidiary banks intimating them that the, Ministry has

since decided "to extend the scheme of reservation in

promotions also". The letter stated that according to the

Reserve Bank of India, it will be difficult to formulate a

scheme uniformly applicable to all the banks though the

basic policy of reservation can always be enunciated. The

letter stated that Reserve Bank of India has already for-

mulated a scheme on the subject applicable to its employees.

While enclosing a copy of the Reserve Bank of India-scheme,

the public sector banks were requested "to implement to

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Government's orders suitably in your existing schemes of

promotions with such procedural modifications as may be

necessary". It is necessary to point out that this letter

refers to "promotions in the various grades in the public

banking system" generally whereas the Office Memorandum

dated March 26, 1970 deals specifically with promotions

within Class-I only Further, this letter (dated December 31,

1977) does not refer

341

to or modify the orders issued in the earlier Memorandums

referred to above, which means that those orders remained

unaffected.

9. On May 30, 1981, the Ministry of Finance, Department of

Economic Affairs (Banking Division), Government of India

issued a letter No.F. 1/45/78-SGT(B) addressed to Chairman

and Managing Directors of twenty Nationalised Banks as well

as to the Chairman, State Bank of India and Managing

Directors of seven subsidiary banks of State Bank of India

on the subject of "reservation for Scheduled

Castes/Scheduled Tribes in promotion". After inviting

attention to the letter dated December 31, 1977, Office

Memorandums dated March 26, 1970 and dated December 23,

1974, the letter stated: "(A)s per the Government orders,

there is no reservation for Scheduled Castes and Scheduled

Tribes in 'promotion by selection' within the officers

cadre. But certain concessions and facilities are to be

provided to the Scheduled Castes and Scheduled Tribes

officers in order to improve their chances for selection to

the higher categories of posts in the officers cadre in

accordance with the orders contained in the aforesaid Office

Memorandums of Ministry of Home Affairs. It has been

decided that the concessions. mentioned in Para-2 of MHA's

O.M.dated 26-3-70 would be, available to the SC/ST officers

in Public Sector Banks/Financial Institutions in 'Promotions

by Selection' to posts within the officers cadre upto scale-

III. The copies of MHA's O.M. dated 26-3-1970 and DP & AR

O.M. dated 23-12-74 are enclosed herewith". The Banks were

requested to implement the said directions.

10. By letter dated November 7, 1983, (F.No. 10 1/1 1/83-

SCT(B) from the Ministry of Finance, Department of Economic

Affairs (Banking Division), Government of India the

instructions issued in the letter dated May 30, 1981 were

reiterated and the formula contained in Para 2 of the Office

Memorandum dated March 26, 1970 was explained by giving an

illustration. The illustration reads thus: "(T)o

illustrate,

if 200 vacancies arc to be filled in and 3 times the number

of vacancies is considered as falling within the 'zone of

consideration', then any SC/ST officer whose seniority falls

within the first 200 will be eligible for promotion provided

that he is not found unfit for promotion". By another

letter dated March 25, 1987, the Ministry of Finance,

Department of Economic Affairs (Banking Division),

Government of India reiterated the aforesaid directions.

11. The last communication in the sequence is the Office

Memorandum No.36012/6/83-Estt.(SCT) dated November 1, 1990

issued by the Ministry of Personnel, Public Grievances and

Pensions (Department of Personnel and Training), Ministries

and Departments of Government of India including the

Ministry of Finance (Banking Division). This Office Memo-

randum is clarificatory in nature. It would be appropriate

to read it here:

"OFFICE MEMORANDUM

Subject: Concessions to Scheduled

Castes/Scheduled Tribes in posts filled by

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Government of India addressed to all the

*******************

The undersigned is directed to refer to the

O.M.No.1/9/69-Estt.(SCT) dated

342

26th March, 1970 as amended vide O.M. No.

1/10/74-Estt.(SCT) dated 23.12.1974 and O.M.

No.36012/12/88-Estt.(SCT) dated 21.9.1988 on

the above mentioned subject (copy enclosed).

2. Though in the O.M. cited above it has

been clearly mentioned that in promotion by

selection within Class I (now Group A) to

posts which carry an ultimate salary of

Rs.2000/- per month or less (since revised to

Rs.5700/-), the scheduled Castes/Scheduled

Tribes will be given a concession namely

"those Scheduled Castes/Scheduled Tribes who

are senior enough in the zone of consideration

for promotion so as to be within the number of

vacancies for which select list has to be draw

n

up, would be included in that list provided

they arc not considered unfit for promotion",

doubts have been expressed in certain quarters

as to whether the concession given hereinabove

is a reservation or a concession.

3. It is hereby clarified that in Promotion

by selection within Group 'A' to posts which

carry an ultimate salary of Rs. 5700/- p.m.

there is no reservation. "

12. it would be appropriate at this stage to refer to the

letter dated May 9, 1980 from the Ministry of Finance, De-

partment of Economic Affairs (Banking Division), Government

of India, addressed to the Chairman, Indian Banks Associa-

tion, Bombay explaining the meaning 0 certain expressions

occurring in the Office Memorandums referred to above. They

arc to the following effect: though according to the New

Officers Service Regulations, salary includes basic pay and

DA, so far as reservations are concerned, i.e., for the

purpose of reservation, ""ultimate salary" is meant to

convey the basic pay only and does not include die variable

DA. It was for this purpose that promotions upto Scale-III

have been covered which carries the scale upto Rs.2250/-

which is exclusive of DA" With respect to the expressions

"zone of consideration" and 'not found unfit", the following

clarification was made:

"Clarifications have also been sought

regarding the term "Zone of consideration" and

"Not found unfit". Zone of consideration is

meant to cover all candidates who satisfy the

prescribed conditions which have been laid

down for being considered for promotion. This

would mean that this zone of consideration

would be similarly applicable to the general

as well as SC/ST candidates. As regards On

term "Not found unfit", it is clarified that

this terms is meant to convey that there is

nothing adverse against the candidate."

13. It may be noted that the scale of Rs. 2250/- mentioned

in the Office Memorandum dated March 26, 1970 was later

revised to Rs.5700/-, as stated in Office Memorandum dated

November 1, 1990 referred to in the preceding para.

14. The Ministry of Personnel, Public Grievances and

Pensions (Department of Personnel and Training), Government

of India has been issuing a Brochure on the subject of

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reservation for Scheduled Castes and Scheduled Tribes in

services from time to time. This Brochure sets out the

reservations, concessions and facilities provided to

Scheduled Castes and Scheduled Tribes officers in Government

service from time to time in a condensed form besides set-

ting out the orders issued by the Government of India from

time to time. Quite often, the courts have been referring

to this Brochure while referring to the reservations

concessions provided to the said categories. One such

reference is in Bihar State Harijan Kalyan Parishad v. Union

343

of India (1985 (2) S.C.C.644). Para 9 of the Brochure, as

extracted in the said judgment, reads thus:

"In promotions by selection to posts within

Group 'A' which carry an ultimate salary of

Rs.2250 per month, or less, the Scheduled

Caste/Scheduled Tribe officers, who are senior

enough in he zone of consideration for

promotion so as to be within the number of

vacancies for which the select list has to be

drawn up, would be included in that list

provided they are not considered unfit for

promotion. Their position in the select list

would, however, be the same as assigned to

them by the Departmental Promotion Committee

on the basis of their record of service. They

would not be given, for this purpose one

grading higher than the grading otherwise

assignable to them on the basis of their

record of service. "

(What is extracted is obviously a portion of Para 9 and not

the whole of Para 9. The decision does not also mention from

which edition of the Brochure was it quoted.)

15.In 1987, the Government of India issued the seventh

edition of the said Brochure in which Para 9.2,

corresponding to the one quoted above, reads as follows:

"9.2 Promotion by selection method.

MHA OM No.1/9/69. Estt. (SCT) dated 26-3-70

and Deptt. of Personnel & A.R. O.M. No. 1/10/

74- Estt.(SCT) dated 23-12-74.

9.2 (a) Promotions by selection within NO.

Group A (Class I).

In promotions by selection to posts within

Group A (Class I) which carry an ultimate

salary of Rs. 2,000/- per month, or less,

(Rs.2,250 per months or less in the revised

scale) there is no reservation, but the

Scheduled Castes and Scheduled Tribes

Officers, who arc senior enough in the

zone of consideration for promotion so as to

be within the number of vacancies for

which the select list has been drawn up, would

be included in that list provided they are

not considered unfit for promotion. Their

position in the select list would, however, be

the same as assigned to them by the

Departmental Promotion Committee on the basis

of their record of service. They would not be

given for this purpose, one grading higher

than the grading otherwise assignable to them

on the basis of their record of service.

In order to improve the chances of Scheduled

Castes and Scheduled Tribes officers for

selection to the higher categories of posts in

Group A (Class 1).

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(i) Scheduled Castes/Scheduled Tribes

officers in Group A (Class 1) Services/posts

should be provided with more opportunities for

institutional training and for attending

seminars/symposia/ conferences. Advantage

would also be taken of the training facilities

available at the Lal Bahadur Shastri National

Academy of Administration, Mussoorie, National

Police Academy, Hyderabad, Indian Institute of

Public Administration, New Delhi, the

Administrative Staff College, Hyderabad etc.

and

(ii)It would be the special responsibility of

the immediate superior

344

officers of the Scheduled Castes/Scheduled

Tribes officers in Class I to give advice and

guidance to the -latter to improve the quality

of their work."

(Emphasis added)

16. The only difference between Para 9.2 as quoted in

Bihar State Harijan Kalyan Parishad and the one contained in

the seventh edition of the Brochure is the addition of the

words "there is no reservation" underlined by us, which are

not found in the version quoted in the said decision- A good

amount of controversy is raised with respect to this

addition. In our opinion, the said controversy is not real

and is born of an insufficient appreciation of the manner in

which the Brochure is prepared by the Government of India.

As stated above, the Brochure out the gist, the substance

and the purport of the various orders issued from time to

time. If only one looks to the original Office Memorandum

instead of concentrating upon the Brochure, the entire con-

troversy turns out to be unreal. Insofar as promotions

within Class-I are concerned we are referring to promotions

within Class- I alone for the reason that we are concerned

in this case with only those promotions - it is admitted by

Sri Rajinder Sachar, learned counsel for the petitioners as

well as the learned counsel for the Union of India and the

Banks that there arc no other orders except those referred

to above; in particular, it is admitted, there is no order

applying the rule of reservation to the said promotions

(within Class-1). In such a situation, the appropriate

course would be to refer to the Office Memorandums issued by

the Government of India particularly the Office Memorandum

dated March 26, 1970 - rather than to the Brochure. As we

shall explain later, sub-paras (1) and (2) of Para 9 of the

Brochure represent the gist of Office Memorandums referred

to above and are in no manner different or inconsistent.

17. We may now turn to the meaning and nature of the

"concession" contained in the Office Memorandum dated March

26, 1970. We have already set out the significant features

of the said concession contained in Para 2 of Office

Memorandum in Para 5 of this judgment. We shall now explain

what exactly does the formula mentioned under (c) in

Paragraph 5 of our judgment mean? For the sake of con-

venience, we shall repeat the formula.In promotions by

selection to posts within Class-I .... the Scheduled

Castes/Scheduled Tribes officers who are senior enough in

the zone of consideration for promotion so as to be within

the number of vacancies for which the select list has to be

drawn up would be included in the list provided they are not

considered unfit for promotion". It is unnecessary to

reiterate that the said Office Memorandum does not provide

for reservation as contemplated by Article 16(4) of the

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Constitution of India; it only provides for a concession

which the State can always provide under Article 16 as

explained in Indira Sawhney & Ors. etc. etc. v. Union of

India & Ors. (1992 Suppl. (111) S.C.C.217). The concession

is evidently designed and intended to help the Scheduled

Castes/Scheduled Tribes officers obtain promotions which

they may not otherwise get Towards that purpose, it is

provided that those Scheduled Castes/ Scheduled Tribes

officers who are Senior

345

enough in the zone of consideration so as to be within the

number of vacancies available shall be included in the

select list provided they are not considered unfit for

promotion. 'The said formula has been explained with

reference to an illustration in the letter dated November 7,

1983, referred to above. Be that as it may, we shall

elaborate and explain it. Take a case where twenty

vacancies arise which have to be filled by promotion by

selection; according to the relevant rules, thrice the

number of vacancies are to be considered - in other words, a

list of sixty eligible candidates has to be prepared who

alone will be considered for promotion to the said twenty

posts, which list is but another name for "the zone of

consideration" referred to in the Office Memorandum; (or-

dinarily, this list is prepared on the basis of seniority-

cum-eligibility); if any Scheduled Castes/Scheduled Tribes

officer happen to fall within Serial No. 1 to 20 in the said

list*, they shall be included in the select list without

further ado, i.e., without subjecting them to the process of

selection and without comparing their merit and grading with

the merit and grading of the other officers within the zone

of consideration. But for the said concession, it may be

noted, these Scheduled Castes/Scheduled Tribes officers may

not get selected even though they may fall within Serial No.

1 to 20 in the zone of consideration for the reason that the

candidates below Serial No.20 may have a better record of

service.and grading than them. Since the promotion is on

the basis of selection, the more meritorious (the officer

having better grading) will get selected notwithstand-

-----------------------------------------------------------

* We shall refer to the said list containing 60 officers -

S.Nos. 1 to 60 - as the zone of consideration.

ing his position in the zone of consideration. It appears

quite obvious that candidates belonging to Scheduled Castes/

Scheduled Tribes were not getting selected by following the

normal procedure of selection and hence, the said concession

was provided. According to it, it is enough if a Scheduled

Castes/Scheduled Tribes candidate comes within Serial No.1

to 20 in the zone of consideration in the illustration given

above. He would be automatically included in the select

list, even though his grading on the basis of his record and

performance may be far inferior to the grading of the other

officers below Serial No.20 in the zone of consideration

provided, of course, such Scheduled Castes'/ Scheduled

Tribes' officer is not found unfit for promotion. So far as

Scheduled Castes/Scheduled Tribes candidates below Serial

No.20 in the zone of consideration are concerned, they will,

of course, be not entitled to any such concession and,

therefore, have to compete with other candidates within the

zone of consideration. It is equally clear that the O.C.

candidates between Serial No. 1 to 20 in the zone of

consideration will not be entitled to the aforesaid

concession; they will have to compete with all others in the

zone of consideration (S.No. 1 to 60) for selection to the

said vacancies. This, in short, is the concession. Since

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it is only a concession and not a reservations the several

letters of the Ministry of Finance referred to above, viz.,

letters dated May 30, 1981, November 7, 1983, March 25, 1987

and the clarificatory Office Memorandum dated November 1,

1990 repeatedly say that while there is no reservation for

Scheduled Castes and Scheduled Tribes in this behalf (i.e.,

in die matter of promotion by selection to posts within

Class-I) a concession is provided to them. It is because

346

of this circumstance again that Para 9.2 in the seventh

edition of the Brochure on the subject of reservation for

Scheduled Castes and Scheduled Tribes in services says that

while there is no reservation, the Scheduled

Castes/Scheduled Tribes candidates are entitled to the

concession mentioned therein.

18. Sri Rajinder Sachhar, learned counsel for the

petitioners placed strong reliance upon the decision in

Bihar State Harijan Kalyan Parishad. Learned counsel

submitted that the said decision clearly lays down that the

rule of reservation does apply to the promotions concerned

herein by virtue of Para 9 of the Brochure. According to

the learned counsel, Para 9 of the Brochure and the

Memorandums aforesaid must be understood in the following

manner: the Government of India has prepared, published and

communicated to all the departments including Public Sector

Banks the forty-point roster; the places reserved for

Scheduled Castes/Scheduled Tribes are clearly specified in

the said roster; the said Memorandums and Para 9 of the

Brochure must be understood in the context of and in the

light of the said roster; if so understood, it means that

all the Scheduled Castes/Scheduled Tribes candidates who are

within the zone of consideration should automatically be

appointed to the posts reserved for them. The learned

counsel pointed out that if the respondents' contention is

accepted, it may happen that all the available vacancies are

filled up by Scheduled Castes/Scheduled Tribes candidates,

thus resulting in 100% reservation. In the illustration

given hereinabove, he submitted, it may happen in a given

case that the Scheduled Castes/Schedule Tribes candidates

arc at Serial No. 1 to 2 - or at any rate, in a large

number; then they will take away all the available twenty

vacancies or such large number. This too would not be

consistent with the principle underlying clauses (1) and (4)

of Article 16 of the Constitution of India. As against

this, stated the learned counsel, the interpretation placed

by him is not only reasonable but consistent with the

general reservation policy of the Government of India and

serves to ensure the vacancies reserved for Scheduled

Castes/Scheduled Tribes to them, even though in competition

with open category candidates they may lag behind. In the

original Office Memorandum dated March 26, 1970, he pointed

out, there are no words to the effect "there is no

reservation" which are found in Para 9.2 as printed in the

seventh edition of the Brochure. The introduction of the

said words in the seventh edition and in the letters dated

May 3 0, 198 1, November 7, 1983, March 25, 1987 and the

clarificatory O.M. dated November 1, 1990 is unwarranted and

unauthorised. Learned counsel submitted further that the

original Memorandum issued by the Ministry of Home Affairs

must be followed and cannot be amended or altered by the

Ministry of Finance while purporting to communicate the same

to Public Sector Banks for implementation.

19. We are unable to agree with the learned counsel. It is

admitted on all hands that so far as promotions within

Class-I are concerned - with which alone the Memorandum

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dated March 26, 1970 deals - there are no orders of the

Government of India applying the rule of reservation. We

have referred hereinbefore to the earlier Memorandum dated

July 11, 1968 (which in turn refers to an yet earlier

Memorandum dated November 8, 1963). Those earlier

Memorandums provide for reser-

347

vation in Classes-II, III and IV but not for promotion to

Class-I and not at any rate to promotions within Class-I.

Nor does the Memorandum dated March 26, 1970 provide for

such reservation. The idea is self evident. While the rule

of reservation is made applicable to the lower categories,

viz., Classes-II, III and IV (to the extent specified in the

said Memorandums), no such reservation was thought advisable

in the matter of promotions within Class-I. Instead of

reservation, a concession was Provided, the concession

explained hereinabove. It is this fact which has been

reiterated, affirmed and clarified in the subsequent letters

of the Finance Ministry. It is thus clear that the letters

of the Ministry of Finance dated May 30, 1981 and the

subsequent ones do not amend or modify the Office Memorandum

dated March 26, 1970 but merely explain it. They make

explicit what is implicit in it. So is the rendering of

Para 9.2 in the seventh edition in the Brochure. What all

they say is that the rule of reservation does not apply to

promotions within Class-I (i.e., promotions to be made on

the basis of selection to posts which carry an ultimate

salary of Rs.2250/- per month or less in the revised scale)

but a concession in terms of Para 2 of the Memorandum dated

March 26, 1970 is provided in that behalf It cannot, there-

fore, be said that either the letters of the Ministry of

Finance or the rendering of Para 9.2 in the seventh edition

of the Brochure is inconsistent with the Memorandum dated

March 26, 1970 or that they arc contrary to the orders of

the Government.

20. Now coming to the decision in Bihar State Harijan

Kalyan Parishad the attack therein was upon two letters, one

issued by the Ministry of Steel and Mines dated April 8,

1982 addressed to the Chairman of the Steel Authority of

India Limited and the other dated August 19, 1982 from the

Steel Authority of India Limited to the Chief Personnel

Manager, Bokaro Steel Plant respectively. It was contended

that the said letters were inconsistent with and contrary to

Para 9 of the Brochure. The judgment starts die discussion

by saying:

"the Government of India, Ministry of Finance,

Bureau of Public Enterprises, issued a

directive to the Chief Executives of all

Public Sector Enterprises on the subject of

reservation for Scheduled Castes and Scheduled

Tribes in appointments in public enterprises.

While 15 per cent and 7 1/2 per cent of posts

am generally to be reserved for Scheduled

Castes and Scheduled Tribes respectively, in

the cam: of promotion of members of the

Scheduled Castes and Scheduled Tribes to

posts, promotion to which are by the selection

method a special procedure is devised by Para

9 of the directive. "

After setting out Para 9, the judgment proceeds to say:

"(A) close perusal of the directive and in

particular paragraph 9 which deals with

"concessions to employees of Scheduled Castes

and Scheduled Tribes in promotions by

selection method" makes it abundantly clear

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that the rule of reservation also applicable

to promotions by selection to posts within

Group 'A' which carry an ultimate salary of

Rs.2250 per month or less, but that the

procedure is slightly different than in the

case of other posts. While the rule of

reservation applies to promotions by

selection to posts within Group 'A' carrying

a salary of Rs.2250 per month or less, it is

prescribed that only those officers belonging

to the Sched-

348

uled Castes and Scheduled Tribes will be

considered for promotion, who are senior

enough to be within the zone of consideration.

Thereafter a Select List depending upon the

number of vacancies would be drawn up in which

would also be included those officers

belonging to the Scheduled Castes and

Scheduled Tribes who are not considered unfit

for promotion, Their position in the Select

list would be that assigned to them by the

Departmental Promotion Committee on the basis

of the record of service. In other words,

their inclusion in the Select List would not

give them seniority, merely by virtue of their

belonging to the Scheduled Castes and

Scheduled Tribes over other officers placed

above them in the Select list by th

e

Departmental Promotion Committee. This

appears to us to be the only possible

interpretation of paragraph 9 of the

directive."

21.Though the judgment does not give the reference number or

date of the directive referred to by it (i.e., the one is-

sued by the Government of India, Ministry of Finance, Bureau

of Enterprises to the Chief Executives of all Public Sector

Enterprises on the subject of reservation for Scheduled

Castes and Scheduled Tribes) the reference evidently is to

the Office Memorandum No.6/16/81-BPE/GM-1(SCT Cell) dated

January 18, 1982 addressed to all Ministries/departments of

Government of India and Chief Executives of all Public

Enterprises, a copy of which is supplied to us in the paper

book furnished by the petitioners. The subject of the

Memorandum is "reservation for Scheduled Castes and

Scheduled Tribes in appointments in public enterprises -

issue of revised draft directives". The Memorandum says

that several orders/instructions have been issued on the

said subject previously but that "it has now been found

necessary that a consolidated directive should be issued

incorporating all the provisions contained in the

supplementary directives and also the provisions contained

in the orders issued from time to time by Department of

Personnel and Administrative Reforms. Accordingly, it

says,"a comprehensive revised Draft Presidential Directives

on the subject have been drawn up and enclosed". The

enclosure to the said letter is entitled "Concessions to

employees of Scheduled Castes and Scheduled tribes in promo-

tions by selection method". It opens with the heading

"Group A and B appointments" and under it the sub-heading is

"A.Promotion within Group A". The first: sub-para reads

thus:

"In promotions by selection to posts within

Group 'A' which carry an ultimate salary of

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Rs.2250/- per month or less, the Scheduled

Caste/Scheduled Tribe Officers, who arc senior

enough in the zone of consideration for

promotion so as to be within the number of

vacancies for which the select list has to be

drawn up, would be included in that list

provided they are not considered unfit for

promotion. Their position in the select fist,

would, however, be the same as assigned to

them by the Departmental Promotion

Committee on the bats of their record of

service. They would not be given, for this

purpose one grading higher than the grading

otherwise assignable to them on the basis of

their record of service."

22.The: second sub-pant sets out the special training and

facilities extended to Scheduled Castes/Scheduled Tribes

office as to improve their efficiency. It is thus clear

that what is mentioned under subheading "A.Promotions within

Group 'A " is nothing but Pant 9 of the Brochure, which is

quoted in the judgment in Bihar State Harijan Kalyan

Parishad. We

349

may also mention that the said enclosure contains several

other matters under subheadings, "9AA. Promotions through

limited departmental competitive examination", "9B.

Promotions by selection from Group 'C' to Group 'B', within

Group 'B' and from Group 'B' to the lowest rung or category

in Group 'A... and "9BB. Promotions by selection in Group

'C' and 'D' appointments". So far as promotions within

Group 'A' are concerned, the said enclosure (Paragraph 9A) -

referred to as the directive in the judgment - does not say

that the rule of reservation 'is applicable to such

promotions. It only speaks of the concession which is but a

repetition of the concession contained in the Office

Memorandum dated March 26, 1970. In other words, the

directive referred to in the judgment - or for that matter

Para 9 set out therein - does not provide for reservation in

the matter of promotions within Class-I. It only provides

for the concession aforementioned. It appears that the

attention of the learned Judges was also not invited to the

Office Memorandum dated March 26, 1970 or to the other Of-

fice Memorandums and letters specifically. Be that as it

may what is relevant is that neither the Presidential

Directive referred to in Bihar State Harijan Kalyan Parishad

nor the Office Memorandums referred to above nor for that

matter Para 9 of the Brochure provide for reservation in the

matter of promotions within Class-I. We must, therefore,

say with great respect that the assumption made in the

judgment in Bihar State Harijan Kalyan Parishad that the

rule of reservation applies to promotions within Class-I

does not appear to be correct. We may also mention that

Paras 9.1 and 9.2, as set out in the Brochure (seventh

edition), do not say anything different. Para 9.2 insofar

as is relevant has already been set out in Para 15, We may

now set out Para 9.1 in full:

"9.1 Promotion through limited departmental

competitive examinations

As indicated in para 2.1 (iii)(a), there is a

reservation of 15 percent and 7 1/2 per cent

of vacancies for Scheduled Castes and

Scheduled Tribes respectively in promotions

made on the basis of competitive examination

limited to departmental candidates, in Groups

B, C and D (Class 11, III and IV posts, in

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grades or services in which the element of

direct recruitment, if any, does not exceed

66-2/3 per cent. (Detailed instructions for

filling such reserved vacancies arc given in

Appendix 13).

In promotions though departmental competitive

examinations, Scheduled Castes/Scheduled

Tribes candidates who have not acquired the

general qualifying standard should also be

considered for promotion provided they arc not

found unfit for such promotion. The

qualifying standard in such examination should

be relaxed in favour of Scheduled Castes and

Scheduled Tribes candidates in keeping with

the above criterian.

For determining the number of vacancies to be

reserved for Scheduled Castes and Scheduled

Tribes in such promotions, a separate roster

on the lines of the roster prescribed in

Annexure I to O.M. No. III 1/69.Est.(SCT)

dated 22-41970 (in which points 1, 8, 14, 22,

28 and 36 are reserved for Scheduled Castes

and points 4, 17 and 31 are reserved for

Scheduled Tribes) should be followed."

23. For the above reasons, we must say, with all the

respect at our command that the decision in Bihar State

Harijan Kalyan Parishad cannot be, said to pay down the law

correctly insofar as it pur-

350

ports to hold that the rule of reservation applies in the

matter of promotions within Class-I.

24.It is brought to our notice that a review petition was

filed against the aforesaid decision, which was disposed of

on January 21, 1987. The order in review reads:

"This miscellaneous petition is consequence of

a misunderstanding of our judgment dated 1st

March, 1985 by the authorities. We wish to

clarify the position by stating that the

Scheduled Castes/ Scheduled Tribes officers

who arc senior enough to be within the zone of

consideration for promotion should be included

in the Select List against the vacancies

available to the members of Scheduled Castes/

Scheduled Tribes according to the roster,

provided they are not considered unfit for

promotion. Paragraph 2 of the Presidential

Directive should be strictly adhered to and

effect shall be given on the basis of scales of

pay that obtained prior to 1975 as mentioned

in that paragraph. The officers promoted as

a consequence of our order will be entitled to

be paid a salary and allowances from the

respective dates with effect from which they

should have been promoted. We am grateful to

Shri G.Ramaswamy, learned Additional Solicitor

General far his assistance."

25. This order also proceeds on the assumption that the

procedure prescribed by Para 9 of the Brochure should be

followed only with respect to vacancies reserved for

Scheduled Castes/Scheduled Tribes. For the reasons

mentioned hereinbefore, this order cannot also be accepted

as laying down the correct interpretation of the, aforesaid

Memorandums or the Presidential directive.

26.It Reliance was next placed upon the subsequent decision

of this Court in Syndicate Bank Scheduled Castes/Scheduled

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Tribes Employees Association v. Union of India & Ors. (1990

Suppl.S.C.C.350), a decision rendered by N.M.Kasliwal and

S.C.Agrawal,JJ. on August 10, 1990. Following the decision

in Bihar State Harijan Kalyan Parishad, it was held in this

decision that in the matter of promotions within Class-I

(Group-A) posts, rule of reservation applies though subject

to the procedure prescribed in Para 9 of the Brochure. The

operative portion of the judgment reads thus:

"It is further decided that though Group 'A'

posts are selection posts still the

reservation policy is applicable to such

posts and the respondents are directed to com-

pute the backlog of unfilled reserved quota

available to SC./ST officers in the promo-

tional posts with effect from January 1, 1978

the date of introduction of reservation policy

in the respondent Bank. The respondents are

further directed to grant promotion to the

SC/ST employees of the Syndicate Bank with

all consequential benefits of salary and

allowances from the respective dates w.e.f

which they should have been promoted after

applying the roster system in their favour.

We grant three months time to carry out these

directions."

27. It appears that a review petition was moved by the

respondents in the said writ petition relying particularly

upon the words "there is no reservation" occurring in Para

9.2(a) of the Brochure,. Reliance was also placed by the

respondents on a decision of this Court in All India Bank of

Baroda Scheduled Castes and Scheduled Tribes Employees

Association v. Union of India & Ors. (Writ Petition No. 1594

of 1987 decided on August 18, 1988) in

351

which it was held that promotions by selection within Class-

I, to be effected on the basis of selection, shall be

effected in accordance with the rules contained in Para 9.2

of the Brochure. The review petition was dismissed on April

1, 1991 holding that the decision dated August 10, 1990 was

based upon the material placed before them. It was observed

that the failure of the parties to bring a particular fact

to the notice of the court furnishes no ground for review.

The precise reason for dismissing the review is to be found

in the following observation:

"We may, however, make it clear that in the

present case we were only concerned with

Scheduled Castes and Scheduled Tribes

employees of the Syndicate Bank and the policy

of reservation with regard to such employees.

We have decided the matter on the basis of the

material made available to us at the time of

arguments and on the basis of contentions made

by counsel representing the respective parties

.

The case as such was decided on the peculiar

facts and circumstances of the case and in

case such controversy arises in future of

Scheduled Castes and Scheduled Tribes

employees of other banks, in our view the

parties will be free to get the controversy

decided by a proper forum by placing their

respective stands. With the above

observations we dismiss the Review Petition

filed by the Union of India and the Bank."

28.What we have said with respect to the decision in Bihar

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Stale Harijan Kalyan Parishad applies equally to the

judgment in Syndicate Bank Scheduled Castes and Scheduled

Tribes Employees Association. Another circumstance. The

present writ petitions were filed evidently inspired by the

decision in Syndicate Bank Scheduled Castes and Scheduled

Tribes Employees Association rendered on August 10, 1990.

When the first of these writ petitions (Writ Petition (C)

No.896 of 1990) came up before a Bench on November 26, 1990

it was directed that the writ petition be posted immediately

after the disposal of Review Petition Nos.592 of 1990 and

608 of 1990 (review petitions referred to hereinabove).

After the review petitions were disposed of on April 1,

1991, Writ Petition No.896 of 1990 along with other

transferred writ petitions were posted before a Bench

comprising T.K.Thommen,J. and one of us (R.M.Sahai,J.) when

it was directed that these matters be placed before a Bench

of which Hon'ble Mr.Justice N.M.Kasliwal or Hon'ble Mr.

Justice S.C.Agrawal are members. The matters were

accordingly posted before a Bench comprising S.C.Agrawal and

Sujata V.Manohar,JJ. on January 18, 1.995. After hearing the

parties, the Bench directed these matters to be listed

before a Bench of three Judges,, It is pursuant to the said

direction that these matters were posted before us.

29. It is true that we have arrived at a, conclusion which

is different from the one adopted in Bihar State Harijan

Kalyan parishad and in Syndicate Bank Scheduled Castes and

Scheduled Tribes Employees Association but on have no

alternative in view of the clear language of the Office

Memorandum dated March 26, 1970, the Presidential directive

referred to in Bihar State Harijan Kalyan Parishad as also

Paragraph 9 of the Brochure (whichever edition one looks

to). It may be that according to our interpretation, the

members of Scheduled Castes/Scheduled Tribes may stand to

gain in some cases, in the sense that they may get more

number of promotions than they would have been en-

352

titled to had the rule of reservation been applied to

promotions within Class-I, while in some other cases they

may stand to lose. But that cannot be a factor determining

the interpretation of the relevant orders. It also appears

that a view different from the view taken in Bihar State

Harijan Kalyan Parishad was taken in the order dated August

19, 1988 in Writ Petition No. 1594 of 1987 (All Indian Bank

of Baroda SC/ST Employees Association v. Union of India &

Ors.), wherein it was held, no doubt on the basis of a

concession made by the learned counsel for the writ

petitioners, that "the promotion by selection method of

officers within Group 'A' (Class-I) in the Bank of Baroda

shall be done in accordance with the rules contained in

Paragraph 9.2 in Chapter 9 of the Brochure". This order

does not refer to rule of reservation.

30. We may reiterate that both according to Sri Rajinder

Sachhar as well as learned counsel for the respondents,

there is no specific order, rule or Memmorandum applying the

rule of reservation in favour of Scheduled Castes/Scheduled

Tribes in the matter of promotions within Class-I service.

In the absence of such reservation, the forty-point roster

prepared by the Government of India cannot be applied or

followed, for the simple reason that the roster is prepared

merely in implementation of and to carry out the rule of

reservation. There can be no roster in the absence of rule

of reservation. If the rule of reservation is not made

applicable to a particular appointment or promotion, there

can be no question of following the forty-point roster

therefor. The forty-point roster itself does not provides

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reservation. It merely specifies places for reserved

categories in accordance with and consistent with the rule

of reservation already made.

31.For the above reasons, we hold that in the matter of

promotion by selection to posts within Class-I which carry

an ultimate salary of Rs.2250/- in the revised scale of pay

per month or less, there is no reservation in favour of

Scheduled Castes/ Scheduled Tribes but they arc entitled to

the concession contained in Para 2 of the Office Memorandum

dated March 26, 1970 issued by the Ministry of Home Affairs.

The concession is that those Scheduled Castes/Scheduled

Tribes officers who are senior enough in the zone of

consideration for promotion so as to be within the number of

vacancies for which the select list has to be drawn up will

be included in the select list provided they are not con-

sidered unfit for promotion. (This rule has been explained

in the body of the judgment by giving an illustration, which

it is not necessary to repeat here.) The position of such

candidates included in the select list would, however, be

the same as is assigned to them by the Departmental Pro-

motion Committee on the basis of their record of service.

The said candidates would not be entitled, for the purpose

of the said selection, one grading higher than the grading

otherwise assignable to them on the basis of their record of

service. Ibis is also the purport of Para 9 of the Brochure

insofar as it deals with promotions within Class-I.

32.So far as Prayer (b) in Writ Petition No.896 of 1990 is

concerned, we must say that it is not possible to accede to

it. The prayer is to direct the respondents in the writ

petition to fill up the backlog of unfilled vacancies since

1978 by applying the carry- forward rule in all grades and

scales with consequential benefits. Firstly,

353

none of the relevant Memorandums and orders referred to

above provide for carry forward rule. In the absence of

such a rule, each year has to be treated as the unit for

applying the rule of reservation or concession, as the case

may be. In any event, so far as the concession concerned

herein is concerned, it can be applied and followed only

when a selection takes place. In the absence of a rule to

that effect, the said concession cannot be given effect to

retrospectively. These writ petitions were filed only in

1990 or thereafter. In such a case, there can be no

question of relating back the relief to 1978. So far as

Prayer (c) is concerned, it is equally beside the point in

the light of what we have decided herein, viz., that the

special provision made in the matter of promotions with

Class-I is not in the nature of reservation but a con-

cession. The only declaration and direction that can be

granted in these matters is that the respondents shall

apply, implement and follow the concession contained in Para

2 of the Office Memorandum dated March 26, 1970 aforesaid in

the matter of promotions in Class-I to be made hereafter.

of course, so far as promotions to Classes-II, III and IV

and promotions from Class-II to the lowest rung or category

in Class-I are concerned, the orders in Office Memorandum

dated July 11, 1968 shall be followed.

33.The writ petitions and transfer petitions are disposed of

in the above terms. There shall be no orders as to costs.

34.No arguments were addressed in the Interlocutory

Applications. No orders are called for therein.

354