Madras High Court
All India Union Bank Of India vs The Chairman And Managing Director on 17 April, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON 17/01/2013
DATED: 17/04/2014
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.15350 of 2002
All India Union Bank of India,
SC/ST Employees Association,
rep.by Deputy General Secretary
E.Kandeeban
Having Office at Plot No.436,
Prakash Nagar,
Tiruninravur,
Thiruvallur District. ... Petitioner
vs.
1.The Chairman and Managing Director,
Union Bank of India,
Central Officer,
239, Vidhan Bhavan Marg,
Mumbai-400 021.
2.The General Manager (Personnel),
Union Bank of India,
Department of Personnel,
239 Vidhan Bhavan Marg,
Mumbai-400 021.
3.The Chief Liason Officer
for SC/ST Welfare,
Union Bank of India,
Mumbai-400 021.
4.The General Manager,
Union Bank of India,
12, Riaz Garden,
Kodambakkam High Court,
Chennai-600 034.
5.The Deputy Secretary
to Government of India,
Ministry of Personnel,
Public Grievances and Pensions
Department of Personnel and Training,
New Delhi.
6.The Additional Secretary
to Government of India,
Department of Economic Affairs Banking
Division, Jeevandeep Building
Parliamentary Street, New Delhi ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records relating to the promotion process for the year 2001-2002 in the Bank vide Staff Circular Nos.4816 & 4817, dated 12.02.2002, issued by the second respondent and to quash the same and consequently directing the respondents 1 to 4 to conduct the promotion process for the officers from JMGS-1 to MMGS-II and from MMGS-II to MMGS-III by implementing the directive issued by the fifth respondent Union of India in the matter of rule of reservation in promotion vide office Memorandum No.20011/1/2001-Estt(D), Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, dated 21.01.2002.
For Petitioner : Mr.S.Saravanakumar
For Respondents : Mr.D.Krishnan for R1 to R4
Mr.S.Ravichandran, C.G.S.C.
for R5 & R6
* * * * *
O R D E R
The prayer in the writ petition is for issuance of a writ of certiorarified mandamus to quash the promotion process for the year 2001-2002 in the Bank vide Staff Circular Nos.4816 & 4817, dated 12.02.2002, issued by the second respondent and to direct the respondents 1 to 4 to conduct the promotion process for the officers from JMGS-1 to MMGS-II and from MMGS-II to MMGS-III, by implementing the directive issued by the fifth respondent Union of India in the matter of rule of reservation in promotion vide office Memorandum No.20011/1/2001-Estt(D), Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, dated 21.01.2002.
2. The short facts of the case are as follows:
The petitioner Association is affiliated to All India SC/ST Bank Employees Association and it is registered under Societies Registration Act, 1860 (Act XXI of 1860. The object of the Association is to safeguard the rights of SC/ST employees in the matter of employment and promotions in the Union Bank of India.
3. The petitioner Association further submits that the second respondent is in-charge of promotions of all groups of employees concerned in the Union Bank of India (hereinafter referred to as 'the Bank') throughout India. As per the promotion policy in the Bank for officers Grade in the preamble, it was stated that in suppression of the existing promotion policy, the Board of Directors formulated a revised policy for promotion of officers from one Grade/Scale to another keeping in view of the guidelines issued by the Government of India from time to time. From the above referred portion of promotion, it is crystal clear that the promotions to all Grade of officers in the bank shall be made in accordance with guidelines issued by the Government of India from time to time.
4. Further, the petitioner Association submits that in order to facilitate the implementation of the directive principles of State Policy, the Constitution of India provides for a number of safeguards for the SC/ST. Article 16(4) of the Constitution of India empowers the State to make any provision for the reservation of appointment posts in favour of any backward class of citizens, which in the opinion of the State is not adequately represented in the services under the State. The Apex Court has held in Indira Sawhney's case that the existing policy of reservation in promotion is not sustainable under Article 16(4) of the Constitution, however the existing promotion policy of reservation may continue for a period of five years i.e., upto 15.11.1997. After the Judgment in Mandal's case, the Union of India issued an office memorandum, dated 13.08.1997, on the subject of reservation for SC/ST in promotion and thereby it was stated that in pursuance of Article 16(4A) of the Constitution of India, it has been decided to continue the reservation in promotion as at present, for SC/ST in the services/posts beyond 15.11.1997, till such time the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation and thereafter the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories.
5. The petitioner Association further submits that since Article 16(4-A) of the Constitution of India enables the Government of India to provide reservation for SC/ST employees in the matter of promotion, the Government of India issued directive and thereby made command to implement the rule of reservation for SC/ST employees in the matter of promotion. The respondent Bank is instrumentality of the State defined under Article 12 of the Constitution of India and hence the Bank should follow the directives issued by the Union of India in the matter of reservation. Prior to the case of Union India vs. Virpal Singh Chauhan, reported in JT 1995 (7) SC 231, the seniority of a person appointed to a post is determined according to the General Principle 5(i) contained in MHA OM No.9/11-55-RPS, dated 22.12.1959 and Para 2.2., in DOPT OM No.22011/7/86 - Estt(D) dated 03.07.2986 read with DOPT OM No.20011/5/90-Estt (D), dated 04.11.1992. Seniority of such persons is determined by the order of merit indicated at the time of initial appointment and seniority of persons promoted to various grades is determined in the order of selection for such promotion. Thus, as per the said instructions, persons appointed through an earlier selection would enblock the senior to those promoted through subsequent selection. The said position was reviewed subsequent to the Judgment of Union of India vs. Virpal Singh Chauhan (cited supra) and it was decided to modify the then existing policy by addition of the proviso to general principle 5(i) stated supra, which stipulated that if a candidate belonging to SC/ST is promoted to an immediately higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate, who is promoted later to the said immediate higher post/grade the general/OBC candidate will regain his seniority over such earlier promoted candidate of SC/ST in the immediate higher post/grade. Therefore, all SC/ST officers, who were promoted in the reserved category are enblocked in consequential seniority. Considering this legal infirmity, the Parliament has enacted the 85th Amendment, by substituting the words 'in the matters of promotions, with consequential seniority to any class' for the words 'in matters of promotion to any class' in Article 16(4A). Therefore, the legislature has laid down the command in Articles 16(4) and 16(A) of the Constitution of India in order to protect SC/ST employees from social injustice.
6. Further, the petitioner Association submits that following the Constitution (85th Amendment) Act, 2001, the fifth respondent issued an office memorandum, dated 21.01.2002, in the subject of seniority of SC/ST Government servants on promotion by virtue of rule of reservation, wherein it has been decided that SC/ST employees shall, on their promotion, by virtue of rule of reservation/roster, be entitled to consequential seniority also and the above decision shall be effective from 17.06.1995 and that all the ministries/departments are requested to bring the above decision to the notice of all concerned for guidance and compliance and necessary action to implement the decisions should be taken within the prescribed time. While the Union of India issued such categorical directives in the matter of reservation in promotion for SC/ST employees, the respondent Bank, which comes within the purview of Article 12 of the Constitution of India, should follow the Government directives. Even in the promotion policy of the Bank, it was admitted in the preamble that the directives issued by the Union of India from time to time to be followed in the matter of reservation in promotion for SC/ST employees. Contrary to the said directive and the own promotion policy, the second respondent issued two circulars viz., staff circular Nos.4816 and 4817, dated 12.02.2002, which are impugned herein, and thereby conducting a promotion process for the promotion of officers from Scale-1 to Scale-2 and Scale-2 to Scale-3 respectively to fill up 460 and 360 vacancies respectively for the year 2001-2002. The said circulars have been issued by the respondent Bank without providing reservation to SC/ST officers in the Bank. The action of the respondent Bank is clear violation of all cannons of law and unconstitutional.
7. The petitioner Association further submits that whenever the Government of India issued directives, which are affecting the rights of SC/ST employees, those directives were keenly followed by the respondent Bank. But, when the Union of India issued directives in favour of SC/ST employees, the respondent Bank ignored the same. The act of the respondent Bank is discriminatory in nature and it is clear violation of the fundamental rights guaranteed in Articles 16(4) and 16(4A) of the Constitution of India. On 07.03.2002, they sent a representation to the respondent Bank requesting them to provide reservation in the matter of promotion for SC/ST employees during the ensuing promotion process commenced by the impugned circulars by following the recent directive as stated supra. But, the respondent Bank had not bothered about their request and they are keen in the further proceedings of the promotion process. Therefore, the petitioner Association filed this writ petition seeking the relief as stated above.
8. The respondents 1 to 4 have filed their counter affidavit stating that the respondent Bank is a Banking Company governed by the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Pursuant to the powers vested under Section 19 of the Act, the Board of Directors of the Bank, after consultation with Reserve Bank of India and with the previous sanction of the Central Government, made regulations called 'Union Bank of India (Officers') Service Regulations, 1979. The said regulations are applicable to all officers of the Bank. Regulation 17 provide formulation of policy for promotion of officers from one Grade/Scale to another, keeping in view the guidelines issued by the Government of India from time to time. The Bank formulated revised promotion policy for officers in Staff Circular No.4278, dated 21.05.1996.
9. Further, they submit that the issue involved in this writ petition is as to whether the respondent Bank in it's officers promotion process from JMGS-I to JMGS-II and from MMGS-II to MMGS-III has to implement the instructions contained in the officers memorandum, dated 21.01.2002 of Government of India, Ministry of Personnel, Public Grievances and Pensions and whether the respondent Bank has violated any policy/direction or guidelines of Government of India in not giving the reservation in the promotion for officers as contemplated by the petitioner Association.
10. They further submit that earlier the petitioner Association filed a writ petition in W.P.No.7735 of 1997, before this Court, to quash the promotion process commenced by the responded Bank during 1997 and for a direction to the respondent Bank to implement the reservation for SC/ST officers as envisaged under Article 16(4)(A) of the Constitution of India. It was the stand of the respondent Bank in their counter affidavit that there was no reservation for SC/ST officers in the promotion of officers' cadre but only concessions were made under Clause 4.1 of the promotion policy. The promotion of officers are made on merits by selection. Further, the Government of India had not issued any directions or guidelines to provide reservation in the promotion of officers. Further, they contended that reservations and concessions to the officers belonging to SC and ST Category are governed by the provisions contained in the brochure issued by the Government of India, Ministry of Personnel, Public Grievance. Chapter-9 deals with promotions, reservations and concessions. Under Clause-9.2, which deals promotions by selection, within Group-A (Class-I), it is mentioned that there is no reservation in promotions by selection to posts within Group-A (Class-I), which carry an ultimate salary of Rs.5,700/-, but SC/ST officers are given concessions in the promotions. This Court, by order dated 02.02.1998, dismissed the said writ petition on merits along with other writ petitions. Aggrieved by the said order of dismissal, the petitioner Association preferred an appeal in W.A.No.304 of 1998 and the same is pending. Therefore, the present writ petition is barred by principle of res judicata and hence the same has to be dismissed.
11. Further, they submit that the petitioner Association filed the present writ petition without disclosing the facts of earlier W.P.No.7735 of 1998 and the pendency of writ appeal. The relief sought for in both the writ petitions are one and the same, but the prayer was worded in different manner. Therefore, the present writ petition has to be dismissed on both the grounds of res judicata and for not having come to Court with clean hands. Consequent upon the Judgment of the Supreme Court in Union of India vs. Virpal Singh Chauhan (cited supra), the Government of India, issued a memorandum, dated 30.01.1997 to all Ministries/Department of Government of India. In the said memorandum, it was instructed in para-3 as follows:
Having regard to the above Judgment of the Supreme Court, it has been decided to modify the existing policy of fixing seniority on promotion on the lines mentioned in para-2 above. Accordingly, it has been decided to add the following proviso to General Principle 5(i) contained in MHA (now DOPT) OM No.9/11/55/RPS, dated 22.12.1959 and para 2.2 of this Department OM No.22011/7/86-Estt.(D), dated 03.07.1986:
Provided that if a candidate belonging to the Schedule Caste or the Schedule Tribe is promoted to an immediate higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate, who is promoted later to the said immediate higher post/grade the general/OBC candidate will regain his seniority over such earlier promoted candidate of the Scheduled Caste and the Scheduled Tribe in the immediate higher post/grade. These orders shall take effect from the date of issue of this memorandum.
12. They further submit that Article 16(4)(A) of the Constitution was amended and for the words 'in the matters of promotion to any class', the words 'in the matters of promotion with consequential seniority, to any class' was substituted. Hence, the Government of India issued the present office memorandum, dated 21.01.2002, withdrawing the earlier office memorandum, dated 30.01.1997 and allowed the Government servants belonging to SCs/STs to retain the seniority. Hence, these two office memorandums have nothing to do with the commencement of promotion process for officers of the Bank or their selection for promotion or their posting to the promoted posts. The prayer in the writ petition to quash the promotion process for the year 2001-2002 issued in Staff Circular Nos.4816 and 4817, dated 12.02.2002, is misconceived and hence the writ petition is not maintainable. The respondent Bank, in compliance with the guidelines issued by the Government of India, in the matter of promotion of SC/ST Officer Employees formulated Clause 4.1 of the promotion policy for SC/ST officers. The Government of India reiterated that there is no reservation for SC/ST in promotion, within the officers' cadre whenever the promotion is by selection. However, such promotions in the Banks upto MMG Scale-III, SC/ST Officers, who are within the number of vacancies for which the selection list has to be drawn up would be included in that list, provided they are not considered unfit for promotion by the promotion/selection committee. The guidelines are incorporated in Clause 4.1 of the promotion policy of the Bank. The Government of India has not issued any other guideline altering the earlier instructions. Hence, it is incorrect to allege that the Bank failed to carry out the instructions and guidelines issued by the Government of India. The service conditions of officer employees of the Bank are governed by Union Bank of India Officers' Service Regulations, 1979. The seniority of officer employees in each grade/cadre are fixed as per Regulation 18. The Bank had not altered the seniority of SC/ST officers as per the office memorandum, dated 30.01.1997, of Government of India. Hence, the question of re-fixing the seniority of SC/ST officers as per the present office memorandum of Government of India, dated 21.01.2002, does not arise. Therefore, the writ petition by the petitioner Association is misconceived and the same is liable to be dismissed.
13. Further, they submit that the Bank has completed the selection for promotion from MMGS-II to MMGS-III and already released the list of promoted officers on 24.04.2002 itself in Staff Circular No.4845. The promoted officers are awaiting for the posting. The promotion from JMGS-I to JMGS-II is in the process and the interviews at all centres were already concluded, but the results are yet to be declared. Due to voluntary retirement scheme, many senior managers of Scale-III have opted for voluntary retirement and retired. The Bank has to fill up the lacuna and in order to put the administration of the Bank to be effective, the promoted Scale-III officers have to be given posting. Therefore, they pray to dismiss the present writ petition.
14. The highly competent counsel Mr.S.Saravanakumar appearing for the petitioner submits that the petitioner's association has been registered under the Registration Act. The second respondent is the Competent Authority to give promotion to all category of employees in the respondent-Bank through out India. The respondent Bank had not provided promotion as per the Guidelines issued by the Government of India. The highly competent counsel vehemently argued that the employees belonging to the SC/ST are entitled to receive promotion as per Article 16(4) of the Constitution of India. Hence, the highly competent counsel entreats the Court to direct the respondents to give promotion under the reservation policy. Besides, the General Principle 5(i) contained in MHA OM No.9/11-55-RPS, dated 22.12.1959 and Para 2.2., in DOPT OM No.22011/7/86 - Estt(D) dated 03.07.2986 read with DOPT OM No.20011/5/90-Estt (D), dated 04.11.1992, also permits the petitioner to get the benefits.
15. The highly competent counsel Mr.D.Krishnan appearing for the respondents 1 to 4 submits that there is no specific provision to provide promotion to the SC/ST category employees under the reservation policy. Further, as per the service records of the petitioner's association employees, they have been given promotions as per the General Principles. Therefore, the prayer of the petitioner is not maintainable to implement the reservation for SC/ST employees. Hence, the highly competent counsel entreats the Court to dismiss the above writ petition.
16. The highly competent Central Government Standing Counsel Mr.S.Ravichandran, appearing for the respondents 5 and 6 submits that the respondents 1 to 4 have not committed any gross violation in providing promotion to the SC/ST employees. The respondents 1 to 4 have strictly followed the Banking Rules and General Principle for providing promotion to the employees.
17. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on all sides and on perusing the typed-set of papers, this Court does not find any sufficient force in the writ petition to allow it since there is no specific provision for promotion to the SC/ST category of employees under reservation. Hence, the above writ petition is dismissed. There is no order as to costs.
17/04/2014
Index : Yes.
Internet : Yes.
r n s
C.S.KARNAN, J.
r n s
To
1.The Chairman and Managing Director,
Union Bank of India, Central Officer,
239, Vidhan Bhavan Marg,
Mumbai-400 021.
2.The General Manager (Personnel),
Union Bank of India, Department of Personnel,
239 Vidhan Bhavan Marg,
Mumbai-400 021.
3.The Chief Liason Officer
for SC/ST Welfare,
Union Bank of India,
Mumbai-400 021.
Pre-Delivery Order in
W.P.No.15350 of 2002
4.The General Manager,
Union Bank of India, 12, Riaz Garden,
Kodambakkam High Court,
Chennai-600 034.
5.The Deputy Secretary
to Government of India,
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training,
New Delhi.
6.The Additional Secretary
to Government of India,
Department of Economic Affairs Banking
Division, Jeevandeep Building
Parliamentary Street, New Delhi.
17/04/2014