Calcutta High Court
All India Allahabad Bank Sc/St ... vs Allahabad Bank And Ors. on 18 December, 1991
Equivalent citations: (1992)2CALLT106(HC)
Author: Altamas Kabir
Bench: Altamas Kabir
JUDGMENT Altamas Kabir, J.
1. An issue of some importance, which had apparently been laid to rest by the Hon'ble Supreme Court while deciding the writ application filed by the Syndicate Bank Scheduled Castes and Scheduled Tribes Employees' Association, has once again cropped up for consideration in the instant writ application. The immediate reaction of this Court was that the matter could not be gone into afresh by this Court. It was, however, argued on behalf of the Respondents that such was not the case. It was submitted that after judgment was delivered in the above matter, a review petition was filed on behalf of the Syndicate Bank and while disposing of the review petition, the Hon'ble Supreme Court itself felt that the matter merited a fresh look and, accordingly, kept the issue open for further examination by the proper forum, if the same was raised by other Banks. It was, however, contended on behalf of the writ petitioners that the matter had been finally concluded by the Hon'ble Supreme Court in the above-mentioned case and there was no scope for this Court to embark upon a fresh enquiry in view of the fact that the review petition was dismissed. According to the writ petitioners, Article 141 of the Constitution precluded this Court from reexamining the matter.
2. In the above context, before proceeding any further, it will be prudent to first of all resolve the above dispute as to whether the reliefs sought for in the writ application should be granted on the basis of the decision in the Syndicate Bank case or whether the issue involved in the said case should be scrutinised afresh in the present case. In order to do so, it is necessary to set out the facts in brief.
3. This Rule which was issued on the writ application of All India Allahabad Bank SC/ST Employees' Welfare Council and some officers of the Allahabad Bank, hereinafter referred to as the "Bank", is directed against the alleged failure of the Bank to maintain a forty point roster for officers belonging to the Scheduled Castes and Scheduled Tribes for promotion to Group "A" posts, in accordance with the policy purported to have been laid down by the Government of India. The writ petitioners have also prayed for a writ in the nature of Prohibition to prohibit the respondents from making any promotion to Group "A" posts without providing for reservation for similarly situated Scheduled Castes and Scheduled Tribes Officers, and from holding interviews for promotion from Middle Management Scale-III, without maintaining reservation for Scheduled Castes and Scheduled Tribes Officers and without filling the backlog vacancies by the candidates for which they were meant.
4. The petitioner No. 1 is an Association of the employees of the Allahabad Bank belonging to the Scheduled Castes and Scheduled Tribes. The other petitioners are officers of the Bank and all of them belong to the Scheduled Castes and Scheduled Tribes and are members of the said Association.
5. The case of the petitioners, as made out in the writ application, is that the Constitution provides for various protective measures for the weaker classes of citizens, many of whom belong to the Scheduled Castes and Scheduled Tribes. In conformity with such Constitutional provisions, the Union of India has always formulated policies for reservation of a certain percentage of posts for Scheduled Castes and Scheduled Tribes candidates in matters of public employment. According to the petitioners, the respondents have refused to implement such policy of reservation in Group "A" (Class-I) posts, which has adversely affected the Constitutional and/or legal rights of the petitioners.
6. According to the petitioners, by Office Memorandum No. 8/12/89 Est(SCT) dated 23rd December, 1970, issued by the Ministry of Home Affairs, Government of India, directions were given that with regard to promotion through departmental competitive examination in public employment, Scheduled Castes and Scheduled Tribes candidates, who did not acquire the general qualifying standard, should also be considered, provided they were not found unfit. By another Office Memorandum No. l/111/69-Est(SCT) dated 22nd April, 1970, directions were given for maintenance of a forty point roster to indicate the positions of Scheduled Castes and Scheduled Tribes Officers in the gradation list, for purposes of promotion. By another Office Memorandum No. l/9/89-Est(SCT) dated 26th March, 1970, the Government of India intimated all concerned that in matters relating to concession to Scheduled Castes and Scheduled Tribes candidates in posts filled by promotion to Class-I services/posts, the Office Memorandum No. 1/12/67-Est (SCT) dated 11th July, 1968, should apply. It is also the case of the petitioners that by Office Memorandum No. 27/2/7l-Est(SCT) dated 27th November, 1972 and Office Memorandum No. 36021/7/75-Est(SCT) dated 25th February, 1976, the Central Government had directed that reservation of seats in the case of promotion within the Officers' cadre should be at least 15 per cent for Scheduled Castes and 7 1/2 per cent for Scheduled Tribes. According to the petitioners, by another Office Memorandum No. 1/10/74-Est (SCT) dated 23rd December, 1974, the Government of India prescribed certain concessions for Scheduled Castes and Scheduled Tribes candidates in cases of promotion by selection to Class-I posts and the Ministry of Finance was requested to bring the same to the notice of all concerned.
7. The further case of the petitioners is that Group "A" posts, which are Class-I posts, contained different grades, such as Junior Management Grade Scale-I, Middle Management Grade Scale-II, Middle Management Grade Scale-III, upto Middle Grade Management Scale-VII. According to the petitioners, the respondent Bank was owned and controlled by the Central Government and all policy decision and major internal administration of the Bank were regulated and governed by the Circulars and Office Memorandum issued by the Central Government from time to time. In order to implement the principles contained in the Constitution for granting benefit to members belonging to the Scheduled Castes and Scheduled Tribes, the Central Government evolved the concept of quota system in the ratio of 15% and 7 1/2 reservation for Scheduled Castes and Scheduled Tribes candidates, both at the time of recruitment and also at the time of promotion, in all government organisations.
8. The main grievance of the petitioners appears to be that in respect of Group "A" posts the respondents do not maintain any separate roster for Scheduled Castes and Scheduled Tribes Employees, in spite of directions purported to have been given by the Government of India, in that behalf. It is also the petitioners' grievance that in violation of the various directives and rules relating to promotion of officers belonging to the Scheduled Castes and Scheduled Tribes, the respondents published a final selection list for promotion from Middle Management Grade Scale-III to Middle Management Grade Scale-IV, without maintaining the forty point roster and/or paying heed to the reservation policy as was allegedly evolved by the Government of India. According to the petitioners, despite their repeated representations for implementation of the reservation policy of the Government of India in matters of promotion within the Officers' grade, the respondents have refused to give effect to the said directives, thereby depriving the petitioners No. 2 to 6 and other similarly placed officers of the Bank the benefits of promotion.
9. According to the petitioners, by a Circular dated 30th May, 1981, the Ministry of Finance, Government of India, had erroneously informed all Nationalised Banks, including the Allahabad Bank, that there was no provision for reservation with regard to promotion by selection, but certain concessions and facilities were to be provided to Scheduled Castes and Scheduled Tribes candidates in order to improve their chances for promotion. It is further alleged by the petitioners, that by another Circular dated 7th November, 1983, the Ministry of Finance, Government of India, once again erroneously alleged that there was no reservation for Scheduled Castes and Scheduled Tribes candidates in matters of the promotion within the Officers' cadre, if such promotion was made on selection basis and not on the basis of seniority subject to fitness. It was also alleged that in relation to promotion within the Officers' cadre upto a post carrying a maximum salary of Rs. 2,250.00 per month, Scheduled Castes and Scheduled Tribes Officers, whose seniority brought them within the zone of consideration for promotion, would be included in the Select List, provided they were not considered unfit for promotion. It has been further alleged that the respondents adopted a promotion policy without providing for reservation which gave the management wide discretion for picking and choosing candidates for promotion.
10. According to the writ petitioners, by Office Memorandum No. 8/11/ 73-Est(SCT) dated 12th September, 1974, it was indicated by the Government of India that since appointment to selection grade was also a promotion, the rules relating to reservation and concessions for Scheduled Castes and Scheduled Tribes candidates would be applicable in cases of promotion by selection or on the basis of seniority-cum-fitness. The writ petitioners have alleged that because of the wrong interpretation of the relevant directives given by the Government of India from time to time, by some officers in the Ministry of Finance, Public Sector Banks have been giving promotion in the Officers' grade in violation of the procedure and policy declared by the Government of India.
11. In the writ application it has been stated that the Syndicate Bank Scheduled Castes and Scheduled Tribes Employees' Association moved a writ petition, being Writ Petition No. 847 of 1987, before the Hon'ble Supreme Court, under Article 32 of the Constitution, raising the same grievances and in the said writ petition the Hon'ble Supreme Court in its judgment, dated 10th August, 1990, held that the policy of reservation formulated by the Government of India was applicable even in respect of Grade "A" posts and the respondents therein were directed to complete the backlog of unfilled reserve quota available to the Scheduled Castes and Scheduled Tribes Officers in the promotional post, with effect from 1st January, 1978.
12. It has also been alleged in the writ application that despite the representation made by the General Secretary of the petitioner No. 1 Association on 20th August, 1990, before the Chairman and Managing Director of the Bank, requesting him to stop further inter scale promotion until Scheduled Castes and Scheduled Tribes candidates were properly represented, in keeping with the judgment delivered by the Supreme Court in the Syndicate Bank case, the General Manager (Personnel), Administrative Department, Allahabad Bank, published a final selection list on 23rd August, 1990, for promotion from Middle Management Grade Scale-Ill to Middle Management Grade-IV, without incorporating the names of any Scheduled Castes and Scheduled Tribes candidates in the said promotion list. According to the petitioners, by doing so, the Bank deliberately chose not to give effect to the reservation policy of the Government of India, although, as was decided by the Hon'ble Supreme Court in the Syndicate Bank case, the said policy also applied to Nationalised Banks.
13. Complaining of the decision of the Bank and its authorities not to implement the policy of reservation, as declared by the Government of India in matters of promotion to Group "A" posts in the Bank, the writ petitioners have moved this writ application for remedying such breach.
14. Appearing on behalf of the writ petitioners, Mr. S. P. Majumdar, learned advocate, submitted that the Bank could not seriously raise any objection for implementation of the policy of reservation in respect of promotion to) Group "A" posts in the Bank, even in respect of posts where promotions were made by selection, inasmuch as, the Hon'ble Supreme Court had already considered the said question in the Syndicate Bank case and had held that the reservation policy as contained in various circulars issued by the Government of India, would also apply in such cases of promotion. Mr. Majumdar submitted that the question having been finally concluded by the Supreme Court in the above case, there was nothing further for this Court to decide in view of the provisions of Article 141 of the Constitution. Mr. Majumdar submitted that the Bank having failed to implement the policy of reservation for promotion of officers to Group "A" posts, a Mandamus should issue on the Bank to give effect to the promotional policy, in the manner indicated by the Hon'ble Supreme Court in the Syndicate Bank case. Mr. Majumdar further submitted that the Bank and the other respondents should be prohibited by a writ in the nature of prohibition from making any promotion from the Middle Management Grade Group-Ill posts to Middle Management Group-IV posts, without first implementing the policy of reservation for the maintenance of the forty point roster and without filling up the backlog of promotion due on the basis of such reservation policy.
15. Mr. Majumdar submitted that Nationalised Banks are bound to follow the reservation policy, as decided by the Supreme Court in the Syndicate Bank case and are bound to give the benefit of reservation with effect from 1st January, 1978, to the officers of the Allahabad Bank also.
16. Various other submissions were made on behalf of the petitioners in reply to the extensive submissions made on behalf of the Bank. I shall deal with such submissions later, as they relate to the various Circulars also referred to on behalf of the Bank in connection with the Government's policy of reservation.
17. Inasmuch as, the Bank was seeking to distinguish the findings and the decision arrived at by the Supreme Court in the Syndicate Bank case, there was a heavy onus on the Bank to establish that the Circulars relating to the Government's policy of reservation did not ipso facto apply to all Nationalised Banks and that notwithstanding the provisions of Article 141 of the Constitution, this Court was entitled to reopen and scrutinise afresh the entire question relating to reservation in respect of Group "A" selection posts.
18. Mr. Subrata Roy, learned advocate appearing for the Bank and the Bank respondents, admitted that in the Syndicate Bank case the Supreme Court had held that even though the promotional posts were based on selection method, the Rule of reservation would apply even to such Group "A" posts, and the benefit of reservation policy to the members of the Schedule Castes and Scheduled Tribes could not be denied on the ground that the promotional posts were to be filled up by selection. Having arrived at the aforesaid conclusion, the Supreme Court also directed the respondent Bank to compute the backlog of unfilled reserved quota available to Scheduled Castes and Scheduled Tribes officers in the promotional posts with effect from 1st January, 1978, the date on which the reservation policy was alleged to have been introduced in the respondent Bank. The respondent Bank was also directed to grant promotion to its Scheduled Castes and Scheduled Tribes employees with consequential benefit of salary and allowances from the respective dates with effect from which they should have been promoted, after applying the roster system in their favour. Mr. Roy submitted that after the judgment was delivered in the aforesaid case, a review petition, being Nos. 592 and 608 of 1990, was filed before the Supreme Court on behalf of the Syndicate Bank and the same was taken up for consideration by the Supreme Court on 1st April, 1991.
19. From the order passed on the review petition it appears that during the hearing of the review petition, it was submitted on behalf of the Syndicate Bank that when the writ petition was being heard, it had mistakenly been stated on behalf of the Bank that the Bank was bound by the decisions taken by the Government of India, Ministry of Finance, and the Bank was not at fault in not granting relief to the petitioners, inasmuch as, the Government of India was not clear in its policy of reservation. It was also submitted that during the hearing of the writ petition, it had been conceded on behalf of the Union of India that the grounds taken in the counter-affidavit filed by the Union of India would not be pressed and the Union of India would abide by any direction given by the Hon'ble Supreme Court. Mr. Roy submitted that during the hearing of the review petition it was brought to the notice of the Hon'ble Supreme Court that Banks are governed by the directions given by the Ministry of Finance (Banking Division) and that paragraph 9.2(a) of the Brochure on reservation for Scheduled Castes and Scheduled Tribes in Services (7th Edition) had not been placed before the Court on behalf of the Syndicate Bank when the writ application was heard and disposed of. It was contended that had the said paragraph in its proper form been brought to the notice of the Supreme Court, the result of the case would have been different, because the said paragraph totally excludes the policy of reservation in respect of promotion by selection to Group "A" posts, and, as such, there was no question of applying the roster of such posts.
20. Mr. Subrata Roy submitted that in its order on the review petition, the Supreme Court, on being informed of the provisions of paragraph 9.2(a) of the above-mentioned Brochure, felt that there was a serious dispute regarding the wording of the said paragraph and that the Syndicate Bank case had been decided on the basis of the particular facts and circumstances of the case which had been brought to its notice at the time of hearing and the decision in the case of Bihar State Harijan Kalyan Parishad v. Union of India and Ors., . Mr. Roy submitted that while disposing of the review petition the Supreme Court had observed as follows :-
"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 form by placing their respective stands".
21. Mr. Roy submitted that the aforesaid observations make it clear that the Hon'ble Supreme Court intended that the decision in the Syndicate Bank case was to apply in respect of the employees of the Syndicate Bank only and not as a matter of course to all other Nationalised Banks. Mr. Roy submitted that while passing orders on the review petition, the Hon'ble Supreme Court had itself lifted the bar of Article 141 of the Constitution so that the entire matter could be looked into and decided afresh, if such an occasion arose. Mr. Roy submitted that in view of the aforesaid observations of the Hon'ble Supreme Court, this Court had ample jurisdiction to reconsider the questions which had come up for consideration before the Supreme Court in the Syndicate Bank case, and to even arrive at a decision contrary to that arrived at by the Hon'ble Supreme Court in the Syndicate Bank case, if the facts and circumstances and the legal position so warranted.
22. From the aforesaid observations it appears to me that when fresh materials were placed before the Hon'ble Supreme Court during the hearing of the review petition, the Hon'ble Supreme Court felt that there was scope of further enquiry with regard to the issues' raised, despite its earlier decision based on the Bihar State Harijan Kalyan Parishad's case. It appears to me that the Hon'ble Supreme Court consequently made it abundantly clear that the appropriate forum, in this case this Court, would be entitled to reconsider the entire matter afresh. The Supreme Court made it clear that its decision in the Syndicate Bank case would be confined to the employees of the Syndicate Bank.
23. I am, therefore, inclined to accept Mr. Roy's submission that the decision in the Syndicate Bank case would not ipso facto apply to all other Nationalised Banks and that the same would not operate as a bar for this Court to reconsider the matter in the light of the relevant Circulars and paragraph 9.(2) (a) of the Brochure.
24. In that view of the matter we may now proceed to consider the arguments advanced on behalf of the Bank that the Central Government had not provided for reservation in cases of promotion by selection to Group "A" posts in Nationalised Banks.
25. As mentioned earlier, there was a heavy onus on the Bank to establish that the Government's policy of reservation, as contained in the various circulars and included in the above-mentioned Brochure, had no application as far as promotion by selection to Group "A" posts in Nationalised Banks were concerned.
26. Mr. Roy submitted that the prayer made in the writ petition for a direction upon the Bank to maintain a forty point roster in Group "A" posts for officers belonging to the Scheduled Castes and Scheduled Tribes, was wholly misconceived. Mr. Roy submitted that in the Allahabad Bank there are several categories of Officers belonging to different scales, namely, Scale-I to Scale-VII and, promotion from one scale to the higher scale is always made by selection method. Mr. Roy submitted that in the Bank no reservation was provided for with regard to promotion in the Officers' cadre. Mr. Roy further submitted that in accordance with the provisions of the Banking Companies (Nationalisation of Undertakings) Act, 1970,i hereinafter referred to as the "Nationalisation Act", the Government's policy of reservation and concession for Scheduled Castes and Scheduled Tribes could be made applicable to the Bank only by directives issued under Section 8 of the said Act Mr. Roy submitted that any other directive in the matter of conditions of service of employees become binding on the Bank, if and when the Board of Directors of the Bank adopts such directives as part of its policy. Mr. Roy submitted that the Circulars and Office Memorandums contained in the Brochure referred to above have no automatic application to employees of Nationalised Banks. According to Mr. Roy, there is, in fact, no directive of the Government of India to the Bank for reservation in respect of promotion to Group "A" posts from Scale-I onward. On the contrary, the only directive of the Government of India, which: has been adopted by the Bank as part of its promotion policy, is to grant certain concessions to Scheduled Castes and Scheduled Tribes employees, if they fell within the zone of consideration at the time of selection and were not otherwise unfit for promotion, but such "concession" was limited to promotion from Scale-I to Scale-II and from Scale-II to Scale-III and not beyond.
Mr. Roy also submitted that the writ petition was based on the mistaken assumption that the policy of reservation of the Government of India applied automatically to the Officers of the Allahabad Bank.
27. In support of his aforesaid contentions, Mr. Roy referred to the relevant provisions of the Nationalisation Act. Mr. Roy firstly referred to the provisions of Section 7(2) of the aforesaid Act, which relates to management, and reads as follows :-
"The general superintendence, direction and management of the affairs and business of a corresponding new Bank shall vest in a Board of Directors which shall be entitled to exercise all such powers and do all such acts and things as the corresponding new bank is authorised to exercise and do".
Mr. Roy submitted that from the above it will be apparent that the general superintendence, direction and management of the affairs of the Bank vests in its Board of Directors.
28. Mr. Roy then referred to the provisions, of Section 19(1) and 19(2) of the aforesaid Act, which read as follows :-
19. Power to make regulations ;
(1) The Board of Directors of a corresponding new bank may, after consultation with the Reserve Bank and with the previous sanction of the Central Government, make regulations, not inconsistent with the provisions of this Act or any scheme made thereunder, to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this act.
(2) In particular, and without prejudice to the generality of the foregoing power, the regulations may provide for all or any of the following matters, namely :-
(d) The conditions or limitations subject to which the corresponding new bank may appoint advisers, officers or other employees and fix their remuneration and other terms and conditions of service.".
Mr. Roy submitted that under the aforesaid provisions, the Board of Directors of the Bank had been vested with powers to make regulations laying down the conditions or limitations subject to which the Bank may appoint officers and other employees and fix their remuneration and other terms and conditions of service. Mr. Roy submitted that promotion being a condition of service, under the aforesaid provision, it was the Board of Directors of the Bank alone which was entitled to regulate promotion of officers in Group "A" posts. Mr. Roy further submitted that the Board of Directors had, in fact, framed regulations which came into effect from 1st July, 1979, which provide that promotion to all grades of Officers in the Bank shall be made in accordance with the policy laid down by the Board of Directors from time to time having regard to the guidelines of the Government, if any.
29. Mr. Roy then referred to the provisions of Section 8 of the Nationalisation Act which are as follows :-
"Every corresponding new bank shall, in the discharge of its functions, be guided by such directions in regard to matters of policy involving, public interest, as the Central Government may, after consultation with the Governor of the Reserve Bank, give".
30. Mr. Roy submitted that Section 8 of the Nationalisation Act, empowers the Central Government to give directions to all Nationalised Banks in respect of matters of policy involving public interest, after consultation with the Reserve Bank of India and such directions are statutory in nature and are binding on the Bank. However, according to Mr. Roy, no such statutory direction has been given by the Central Government to the Bank making the Office Memorandum/Circulars contained in the abovementioned Brochure applicable to the Bank. Mr. Roy contended that the Central Government's policy relating to reservation of posts in public employment for Scheduled Castes and Scheduled Tribes employees do not ipso facto bind the Bank. Mr. Roy submitted that the directions given by the Central Government relating to reservation in respect of promotion by selection to Group "A" posts are required to be taken into consideration by the Board of Directors of the Bank while framing the promotion policy of the Bank, but such directions are not mandatory in nature and there is no compulsion on the Board to follow such guidelines, if they chose not to do so.
31. Mr. Roy submitted that, however, after considering the directions issued by the Central Government from time to time, as contained in the above-mentioned Brochure, the Board of Directors of the Allahabad Bank, while framing its promotion policy, adopted the policy of concession in respect of promotion of Scheduled Castes and Schedule Tribes Officers from Scale-I to Scale-III in Group "A" posts.
32. In support of his aforesaid contention, Mr. Roy referred to paragraph 13.1 (A) of the promotion policy for officers adopted by the Bank and which reads as follows :-
"13.1 (A) ; SC/ST Officers whose names fall within the number of vacancies, in the seniority list, may be included in the Merit List of successful candidates for promotion upto Scale-III provided they participate in the promotion process and are not found unfit for promotion in accordance with the norms and standards laid* down in this promotion policy. Their position in the Merit List would, however, be the same as assignable to them on the basis of their ranking. The remaining number of candidates will be included in the Merit List in accordance with the normal procedure for selection as laid down in this Promotion Policy".
Mr. Roy submitted that according to the provisions of paragraph 13.1 (A) of the Promotion Policy, Scheduled Castes and Scheduled Tribes Officers, whose names fell within the zone of consideration in the Seniority List, could be included in the Merit List of successful candidates for promotion upto Scale-Ill, provided they participated in the promotion process and were not found unfit for promotion.
33. Mr. Roy then submitted that even the Central Government had no policy of reservation, in respect of Group ' A" posts to be filled by promotion by selection method. In this behalf, Mr. Roy referred to the provisions of paragraph 2.1(iii)(,b) of the Brochure which reads as follows :-
"2.1 : Subject to Exemptions and Exclusions referred to Chapter 3, the following reservations are in force in favour of the Scheduled Castes and Scheduled Tribes in filling vacancies in posts and services under the Government of India : (iii) Posts filled by promotion :-
(b) By selection from Group B (Class-II) to the lowest rung or category in Group "A" (Class-I) and in Groups B, C and D (Class-II, III and IV) posts, in grades or services in which the element of direct recruitment, if any, does not exceed 66-2/3 per cent".
Mr. Roy also referred to the provisions of paragraph 2.1 (iii) (c) of the Brochure which relate to posts to be filled by promotion on the basis of seniority subject to fitness in Groups A, B, C and (Class-I, Class-II, Class-III, and Class-IV) posts in grades of services in which the element of direct recruitment, if any, does not exceeded 66-2/3 per cent. Mr. Roy submitted that in respect of promotion both by selection method and on the basis of seniority subject to fitness, the Central Government had provided for reservation. However, as far as promotion by selection was concerned, the same, inter alia, referred to promotion from Group "B" (Class-II) to the lowest rung or category in Group "A" (I).
34. Mr. Roy next submitted that the evolution of the Central Government's policy for reservation in respect of appointments through promotion would be noticeable from the various Office Memorandums/Circulars issued by the Government from time to time.
35. In this connection, Mr. Roy referred to the relevant Circulars issued by the Government of India from time to time. The first Circular referred to by Mr. Roy is Office Memorandum No. 5/4/55 SCT(I) dated 4th January, 1957, whereby reservation was provided for Scheduled Castes and Scheduled Tribes in matters of promotion dependant on departmental competitive examinations. The next Circular, being Office Memorandum No. 1/10/61 dated 8th November, 1963, made provision for reservation in promotion by selection in Class-III and Class-IV posts.
36. In 1968, the provision regarding reservation was slightly altered when by Office Memorandum No. 1/12/67 ESTT(C) dated 11th July, 1968, reservation in limited departmental examinations to Class-II, III, and IV posts and promotion by selection to Class-Ill and IV posts were made subject to the condition that direct recruitment in such cases would not exceed 50 per cent.
37. Mr. Roy next referred to Office Memorandum No. 27/2/71 dated 27th November, 1972, whereby reservation in all groups, where promotion was made on the basis of seniority subject to fitness and also subject to the condition that the element of direct recruitment did not exceed 50 per cent were introduced. Mr. Roy submitted that in 1974 a further change was introduced when by Office Memorandum No. 10/41/73 ESTT(SCT) dated 20th July, 1974, reservation in promotion by selection from Group "C" to Group "B", within Group "B" and from Group "B" to the lowest rung of Group "A" was introduced, subject to the condition that the element of direct recruitment did not exceed 50 per cent. The last Circular referred to by Mr. Roy was Office Memorandum No. 36021/7/75 dated 15th February, 1976, whereby the limitation in respect of direct recruitment not exceeding 50 per cent was raised to 66-2/3 per cent.
38. Having regard to the aforesaid Circulars, Mr. Roy submitted that they did not provide for reservation in Group "A" posts of the Central Government in relation to promotion by selection method. Mr. Roy submitted that reservation was provided for in respect of posts in grades or services in which the element of direct recruitment did not exceed 66-2/3 per cent, where promotion is on the basis of seniority. In such cases there is reservation of 15 per cent and 7i per cent respectively. Mr. Roy submitted that the Central Government had provided for reservation in respect of grades and services within Group "A" posts, when promotion is only on the basis of seniority, but in respect of promotion by way of selection, no reservation has been provided for in Group "A" posts of the Central Government.
39. Mr. Roy then submitted that Chapter 9 of the Brochure summarises the policy of the Central Government regarding promotion, and paragraph 9.2 of Chapter 9 makes it very clear that no reservation had been provided for, but Scheduled Castes and Scheduled Tribes Officers would be included in the select list if they were senior enough to come within the zone of consideration for promotion, so as to be within the number of vacancies, provided they were not otherwise considered unfit for promotion, Mr. Roy submitted that the said paragraph was based on the Circulars issued from time to time by the Government of India, namely,
(i) OM No. 1/10/61 ESTT(D) dated 8th November, 1963.
(ii) OM No. 1/12/67 ESTT(C) dated 11th July, 1968.
(iii) OM No. 1/9/69 ESTT(SCT) dated 26th March, 1970.
40. Mr. Roy submitted that from the aforesaid Circulars it will be clear that the Central Government did not think it necessary to provide for reservation in promotions in respect of Group "A" posts, when such promotions are made by selection method. However, a concession has been provided for in such posts for Scheduled Castes and Scheduled Tribes candidates for their selection, which could not be equated with reservation.
41. Developing the aforesaid point further, Mr. Roy submitted that in cases where reservation has been provided for, such reservation contemplates reservation of posts and not reservation which was personal to a candidate. Mr. Roy submitted that the Rule relating to "carry forward" applied to reservation in vacancies arising in the posts which are reserved for Scheduled Castes and Scheduled Tribes candidates. Therefore, when there was no reservation provided for, the carry forward Rules of vacancies which are reserved, would not apply. Mr. Roy submitted that the prayer of the petitioners to extend the Central Government's alleged policy of reservation within Group "A" posts by selection method and to implement the forty point roster system, which is also based on the policy of reservation, is, therefore, misconceived, as the petitioners are trying to assert a right for which there is no foundation.
42. Mr. Roy submitted that the Rule relating to concession to be granted upto Scale-III within Group "A" posts, in accordance with the Central Government's directions, was accepted by the Allahabad Bank as part of its promotion policy, as mentioned in paragraph 13.1 (A) of the promotion policy, referred to hereinbefore.
43. Mr. Roy submitted that the petitioners had failed to show or specifically identify any policy of the Central Government for reservation in promotion by selection in Group "A" posts. Mr. Roy submitted that the petitioners had moved this writ application solely on the basis of the Hon'ble Supreme Court's decision in the Syndicate Bank case. Mr. Roy submitted that the judgment in the Syndicate Bank case, had been delivered on the basis of concessions made on behalf of the Syndicate Bank and also on behalf of the Union of India and the error was specifically brought to the notice of the Hon'ble Supreme Court by way of the above-mentioned review application. Mr. Roy also submitted that the judgment in the Syndicate Bank case had been based on a previous decision of the Hon'ble Supreme Court in the Bihar State Harijan Kalyan Parishad's case (supra), but it was not, however, clear from the said case as to which directive of the Central Government was being considered by the Hon'ble Supreme Court in that case. Mr. Roy submitted that reference had been made in , the said case to a Presidential directive, but there is no such directive in the Brochure published by the Government of India in respect of reservation for Scheduled Castes and Scheduled Tribes candidates in services under the Central Government.
44. Mr. Roy submitted that a judgment based on concession and not on any analysis on examination of the relevant provisions of law cannot be cited as a precedent. In this behalf, Mr. Roy referred to two decisions of the Hon'ble Supreme Court, namely, (i) Laxmi Sankar Shrivastava v. State, and (ii) Municipal Corporation of Delhi v. Gurnam Kaur, Mr. Roy submitted that in the two aforesaid cases the Hon'ble Supreme Court had observed that it is axiomatic that when a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor lays down any principle. Mr. Roy submitted that since the Syndicate Bank case had been decided on concessions made on behalf of the Bank and the Government of India, the decision arrived at therein could not be taken to be a precedent so as to have a binding effect in subsequent cases where a similar question arose for adjudication.
45. Mr. Roy next submitted that Banks being statutory bodies, they are required to function within the framework of the relevant statutes and the directives of the Central Government would be binding on the Banks if such directives were given in terms of Section 8 of the Nationalisation Act or if the Board of Directors adopted the same as part of the Bank's policy. In this connection, Mr. Roy referred to the decision of the Hon'ble Supreme Court in the case of Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office, Manipal and Anr., reported in 1991(2) Services Law Reporter, at page 784, wherein the Hon'ble Supreme Court held that the directive issued by the Ministry of Finance, Government of India, informing the Bank that the punishment, advised by the Central Vigilance Commission in every case of disciplinary proceedings should be strictly adhered to and was not to be altered without the prior concurrence of the Central Vigilance Commission and the Ministry of Finance, was not binding on the Bank and that the Ministry of Finance, Government; of India, had no authority to issue the impugned directive to Banking Institutions. The Hon'ble Supreme Court further held that the Government was entitled to regulate the Banking Institutions within the power located under the Banking Companies (Acquisition and Transfer undertakings) Act, 1970, and Section 8 of the said Act was the only provision which empowered the Government to issue such directions. Mr. Roy reiterated that the Syndicate Bank case could not be taken to be an authority for the proposition that the Central Government's directives, even assuming that such directions contained provisions for reservation, would be binding upon the Bank, unless the same were issued under Section 8 of the Nationalisation Act.
46. Mr. Roy lastly submitted that there was a marked distinction between the expression "reservation of vacancies" and the expression "concessions" for Scheduled Castes and Scheduled Tribes candidates. While the scheme of reservation applied to posts, concession could be made in respect of candidates, if such candidates were within the zone of consideration. Moreover, even if such concession is read as reservation, such reservation is personal to the candidate and the post is not reserved. Accordingly, the maintenance of a forty point roster, based on such concession,. did not arise. Mr. Roy submitted that, in any event, even if the word "concession" is read as "reservation", it did not apply to officers beyond Scale-Ill in Group "A" posts of the Central Government. The Officers could not, in any event, ask for grant of such concession beyond Scale-III in Group "A" posts.
47. Mr. Roy concluded his submissions by submitting that the relevant Circulars issued by the Central Government from time to time had not been brought to the notice of the Supreme Court when the Syndicate Bank case was decided, and the said case had been decided on the concession made on behalf of the Bank and the Union of India that the Bank was bound by the directions of the Central Government. However, when the review1 application was heard by the Hon'ble Supreme Court, Their Lordships felt that there was some substance in the arguments advanced on behalf of the Bank in the review application and, accordingly, made it quite clear that the decision in the Syndicate Bank case would be applicable to the employees of the Syndicate Bank, but if in future the same controversy arose in respect of employees of other Banks, the parties would be free to get the controversy decided by a proper forum by placing their respective cases. In the light of the Circulars and the other relevant provisions of law, referred to during the hearing of this case, Mr. Roy invited this. Court to hold that no reservation was provided for in the Central Government's policy, so far as it related to Group "A" posts, where promotion was made by selection method and that the policy of the Central Government allowed only for concession to Scheduled Castes and Scheduled Tribes candidates upto Scale- III in Group "A" posts, where promotion was made by selection method, provided the concerned officer came within the zone of consideration and was not otherwise unfit for promotion. Mr. Roy submitted that the writ petition had no merit and was liable to be dismissed.
48. Mr. R. N. Das, learned Advocate appearing for the Union of India, drew the attention of the Court to the prayers contained in the writ application. Mr. Das submitted that the said prayers were based on the decision of the Supreme Court in the Syndicate Bank case and in the event this Court held that the decision arrived at in the said case was not binding on the other Nationalised Banks, then, in such event, the prayers were bound to fail and the writ petitioner was bound to be dismissed.
49. Mr. Das further! submitted that the Association, being the petitioner No. 1 in the writ) petition, was an un-recognised Association, which was not capable of maintaining the writ petition. Mr. Das further submitted that no specific case had been made out in the writ petition and the grounds taken in the writ petition were entirely general in nature and did not disclose any specific ground in support of the prayers made in the writ petition. In short Mr. Das submitted that the prayers made in the writ petition were not supported by the grounds taken by the petitioners and there was nothing to indicate as to why such prayers should be allowed. Mr. Das [further submitted that the petitioners have neither asserted nor indicated any legal right which had been infringed, which gave rise to a cause of action for the instant writ application.
50. Mr. Das submitted that even if this Court held that the judgment of the Supreme Court in the Syndicate Bank case was not binding on other Nationalised Banks, there would be no infringement of the provisions of Articles 335 and 16(4) of the Constitution as the policy of the Government itself did not provide for reservation for promotion to Group "A" posts by selection.
51. Apart from the above submission, Mr. Das adopted the arguments of Mr. Subrata Roy, learned Counsel appearing for the Allahabad Bank.
52. Replying to the aforesaid contentions made on behalf of the Bank and the Union of India, Mr. Majumdar submitted that the instructions of the Central Government were binding on the Banks and the Board of Directors of the Bank was not entitled to formulate any policy without taking into consideration the guidelines given by the Central Government in that behalf. Mr. Majumdar referred to Regulation 17 of the Allahabad Bank (Officers') Service Regulations, 1979, which deals with the Bank's policy with regard to promotion and reads as follows :-
"17(1) 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.
(2) For the avoidance of doubts, it is clarified that this regulation shall also apply to promotions of any category of employees to the junior management grade".
Mr. Majumdar further submitted that the said regulation makes it very clear that the Board could not ignore the guidelines of the Government while formulating its policy regarding promotion to all grades of employees of the Bank.
53. Referring to paragraph 9.(2) (a) of the Brochure, Mr. Majumdar submitted that the same was based on Office Memorandum No. 1/9/69- ESTT(SCT) dated 26th March, 1970, issued by the Ministry of Home Affairs, Government of India, wherein it was stated that certain concessions had been provided to Scheduled Castes and Scheduled Tribes in the matter of promotion by selection to the lowest rung or category in Class-I services/ posts by an earlier Office Memorandum No. l/12/67-ESTT(C) dated 11th July, 1968. By the Circular dated 26th March, 1970, the Government explained that it had been decided that the concessions and facilities incorporated in the earlier Circular, would be provided to Scheduled Castes and Scheduled Tribes Officers for their promotion within Class-I posts also. Mr. Majumdar submitted that nowhere in the aforesaid Circular was it mentioned that there would be no reservation for promotion by selection to posts within Group "A" (Class-I) which carried an ultimate salary of Rs. 2,000/- or less (Rs. 2,250/- per month or less in the revised Scale). Mr. Majumdar submitted that the same had been introduced in paragraph 9(2) (a) of the Brochure to the severe prejudice of Scheduled Castes and Scheduled Tribes Officers, although, the policy of reservation of the Central Government has been clearly incorporated in the aforesaid Circulars.
54. In this connection, Mr. Majumdar also referred to Office Memorandum No. l/ll/69-ESTT(SCT) dated 22nd April, 1970, relating to maintenance of a separate roster to give effect to the policy of reservation for Scheduled Castes and Scheduled Tribes.
55. Mr. Majumdar also referred to Office Memorandum No. 8/12/71- ESTT(SCT) dated 21st September, 1971, Office Memorandum No. 10/41/- 73-ESTT(SCT) dated 20th July, 1974, Office Memorandum No. 39/40/74- SCT(I) dated 30th November, 1974 and Office Memorandum No. 1/10/74 ESTT(SCT) dated 23rd December, 1974, in support of his aforesaid contention. Mr. Majumdar placed special emphasis on Office Memorandum No. l/10/74-ESTT(SCT) 23rd December, 1974, which contained the decision of the Government with regard to concessions to be made for Scheduled Castes and Scheduled Tribes in Group "A" posts to be filled up by promotion by selection. According to Mr. Majumdar, the concessions referred to in Office Memorandum No. l/9/69-ESTT(SCT) dated 26th March, 1970, had been extended to promotions by selection to Class-I posts carrying an ultimate salary of Rs. 2,250/- per month in the revised scale. Mr. Majumdar submitted that after revision of pay scales, as reflected today, the prescribed limit in the pay scale, as mentioned in paragraph 9.2(a) of the Brochure, will cover all the grades in Group "A" posts upto Scale-VII. Mr. Majumdar further submitted that the Constitutional right guaranteed under Article 16(4) of the Constitution could not be over-ridden by the guidelines formulated by and adopted by the Board of Directors of the Bank.
56. Mr. Majumdar also submitted that the word "concession" must be interpreted to mean that in the event no candidate was available from amongst Scheduled Castes and Scheduled Tribes to fill up the reserved post, then, in such cases only, attempts were to be made to obtain some suitable candidate from the lower rung for the purpose of giving effect to the Government's policy of reservation.
57. Mr. Majumdar lastly submitted that in the Syndicate Bank case, the Central Government did not make any concession on facts, but in law. Accordingly, the factual aspects remain the same and the decision arrived at by the Supreme Court in the Syndicate Bank case on the basis of such facts, could not be assailed in the present writ application, notwithstanding the observation made by the Hon'ble Supreme Court while disposing of the review petition.
58. Having considered the facts of the case and the submissions made on behalf of the respective parties, it appears to me to be apparent that the declaration in this case will depend on the question as to whether there are any fresh materials which are required to be considered by this Court, which were not placed before the Hon'ble Supreme Court for its consideration during the hearing of the Syndicate Bank case.
59. Although, an attempt has been made by Mr. Majumdar, learned Advocate appearing for the writ petitioners, to show that all the questions now being considered in this case were also considered by the Hon'ble Supreme Court in the Syndicate Bank case, it cannot be denied that the decision in the Syndicate Bank case was based on the submission made on behalf of the Syndicate Bank that being a Nationalised Bank, it was under the administrative control of the Government of India, Ministry of Finance, (Banking Division), and was guided by directions issued by the Banking Division, Ministry of Finance, Government of India from time to time, and also on the basis of the stand taken by the learned Counsel appearing for the Union of India that the Union of India would abide by any direction given by the Court. It is no doubt true that the relevant provisions of the Brochure, as also the Allahabad Bank (Officers') Services Regulations, 1979, were taken into account by the Hon'ble, Supreme Court while deciding the Syndicate Bank case, but the argument now being sought to be advanced is that Nationalised Banks are not bound by the directions given by the Ministry of Finance, (Banking Division), Government of India, unless such directions are given under Section 8 of the Nationalisation Act, and that there is no provision for reservation in the policy of the Government with regard to Group "A" posts. In fact, the review application in the Syndicate Bank case was based on the arguments now being sought to be advanced in the present case. It appears that there is a certain amount of confusion regarding the wording of paragraph 9.2(a) of the Brochure where the expression "there is no reservation" has been included. It appears that the Supreme Court, while disposing of the review petition, took note of the 6erious dispute relating to the wording of the aforesaid paragraph.
60. As mentioned in the order on the review petition, the Syndicate Bank case was to some extent based on an earlier decision of the Supreme Court in the case of 'Bihar State Harijan Kalyan Parishad (supra), in which the Hon'ble Supreme Court had occasion to deal with paragraph 9 of the Brochure. While disposing of the review petition the Hon'ble Supreme Court also observed that the Syndicate Bank case had been decided on the basis of the particular facts and circumstances of the case brought to its notice at the time of hearing of the case. The Supreme Court, therefore, in its wisdom observed further, that as the Syndicate Bank case had been decided on the peculiar facts and circumstances of the case, in the event the same controversy arose in future in respect of Scheduled Castes and Scheduled Tribes Employees of other Banks, the matter could be gone into afresh.
61. Both the writ petitioners and the Bank, as well as the Union of India, have relied on paragraph 9.2(a) of the Brochure in support of their respective cases. Of course, on behalf of the writ petitioners it has been pointed out that the wording of the aforesaid paragraph was not consistent with the Office Memorandum on which it was based, since the said Office Memorandum, being No. l/12/67-ESTT(C) dated 11th July, 1968, did not contain the words "there would be no reservation", which have been included in paragraph 9.2(a). This submission made on behalf of the writ petitioners have been admitted by the learned Counsel for the Bank who, however, submitted that the inclusion of the said words made no difference to the intention of the Government incorporated in the said paragraph. The controversy, therefore, will have to be decided on the interpretation of paragraph 9.2(a) of the Brochure and to see whether the policy of the Government with regard to reservation is extended to Group "A" posts and particularly Group "A" posts beyond Scale-III. It will also have to be considered whether Nationalised Banks are bound by the policy decisions and or directions of the Central Government, irrespective of whether such directions are made under Section 8 of the Nationalisation Act.
62. In the above background let us now examine the points raised by the respective parties for the purpose of ascertaining as to whether the writ petitioners are entitled to the reliefs prayed for in the writ petition on the basis of the decision; given by the Supreme Court in the Syndicate Bank case.
63. As indicated above, the first point for consideration is whether directions given by the Central Government, apart from those given under Section 8 of the Nationalisation Act, are binding on Nationalised Banks. While Mr. Majumdar, appearing for the writ petitioners, has contended that Nationalised Banks, being Public Sector Undertakings, are bound to follow the directions given by the Central Government from time to time, Mr. Roy, learned Advocate appearing for the Bank, has contended that such is not the case and that the Banks were bound only by those directions which were issued by the Government under Section 8 of the Nationalisation Act.
64. From a reading of the different provisions of the Nationalisation Act, 1970, it appears that the general superintendence and management of the affairs of the Nationalised Banks is vested in the Board of Directors, who have been empowered to make regulations regarding the conditions or limitations subject to which the Banks may appoint advisers, officers or other employees and fix their remuneration and other terms and conditions of services. Section 19(2)(d) of the Nationalisation Act makes the aforesaid position quite clear, but then, a certain note of caution has been introduced in Section 8 of the said Act which provides that the Nationalised Banks shall in the discharge of their functions be guided by such directions with regard to matters of policy involving public interest, as the Central Government may, after consultation with the Governor of the Reserve Bank, give. In fact, Section 19(1) of the said Act, which empowers the Board of Directors of the Bank to make regulations, makes it clear that such regulations are to be framed after consultation with the Reserve Bank of India and with the previous sanction of the Central Government. While it is true that the right of management and the framing of regulations regulating the service conditions of its employees, have been vested in the Board of Directors of the Bank, it must also be held that while discharging such duties and functions, the Board of Directors must be guided by such directions in regard to matters of policy involving public interest, as the Central Government may from time to time give, in consultation with the Governor of the Reserve Bank. The power of the Board of Directors of the Nationalised Banks cannot, therefore, be said to be unfettered, and that the directions given by the Central Government, other than those given under Section 8 of the Nationalisation Act, are not to be considered as mandatory but directory in nature. Such an argument, in my view, would be contrary to the intention of the legislature in enacting the Nationalisation Act, as indicated in the preamble of the Act, and would sound a disharmonious note in the construction of the Nationalisation Act as a whole. Among other objects, the Nationalisation Act was enacted to provide for acquisition and transfer of the undertakings of certain banking companies to meet progressively, and serve better the needs of development of the economy in conformity with national policy and objectives and for matters connected therewith or incidental thereto.
65. Accordingly, I have no hesitation in holding that while formulating its policies, Nationalised Banks are required to follow the directions given by the Central Government from time to time with regard to policy matters involving public interest. Section 8 of the Natitnalisation Act, in my view, simply indicates that while discharging its functions, the Banks will be guided by such directions with regard to policy matters involving public interest as the Central Government may give in consultation with the Governor of the Reserve Bank. Section 8 of the Nationalisation Act makes it clear that Nationalised Banks are bound to follow such directions given by the Central Government in matters of policy involving public interest, as in the present case. In my view, it is not necessary that a direction has to be issued by the Government specifically under Section 8 of the Nationalisation Act, before it has a binding effect on the Nationalised Banks, as has been sought to be contended by Mr. Roy. On the other hand, when directions are given by the Central Government in regard to matters of policy involving public interest, the Nationalised Banks must act in conformity with such directions.
66. The decision of the Hon'ble Supreme Court referred to by Mr. Roy on this point, namely, the case of Nagaraj Shivarao Karjagi (supra), in, my view, does not support the contention of Mr. Roy, but, on the other hand, supports the view which I have taken. In the concluding portion of the aforesaid judgment, the Hon'ble Supreme Court has observed as follows :-
"Section 8 empowers the Government to issue directions in regard to matters of policy, but there cannot be any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases".
In other words, although, the Government is not empowered to issue directives regarding matters relating to the day to day administration of the Banks, it would have the authority to issue directions in regard to matters of policy. The policy of reservation of the Central Government is obviously a policy matter involving broader issues of public interest and, in my view, in such a case, the Government would be entitled to issue directives regarding such matters and in terms of Section 8 of the Nationalisation Act, the Nationalised Banks would be bound to follow such directions.
67. However, the broader issue as to whether there is a policy of reservation of the Central Government with regard to reservation in Group "A" posts, is required to be examined with special reference to paragraph 9.2(a) of the Brochure and the relevant Circulars on which the said paragraph is based.
68. In the order passed by the Hon'ble Supreme Court on the review application in the Syndicate Bank case, it has been clarified that its decision in the Syndicate Bank case was based on its earlier decision in the Bihar State Harijan Kalyan Parishad, case (supra), in which the Hon'ble Supreme Court had occasion to interpret the provisions of paragraph 9 of what was referred to as a Presidential directive, which dealt with concessions for Scheduled Castes and Scheduled Tribes in matters of promotion in Group "A" posts by selection method. It has been contended on behalf of the Bank, that the Presidential directive referred to in the Bihar State Harijan Kalyan Parishad case, is obviously a reference to paragraph 9.2(a) of the Brochure, which is nothing but a compilation made by the Central Government on the basis of the various Circular issued by it from time to time in that behalf.
69. As it appears, there does not seem to be any separate Presidential directive on the subject, as neither the writ petitioners nor the respondents could throw any light on the Presidential directive referred to in the Bihar State Harijan Kalyan Parishad case. In the said case, it appears that the relevant Circulars on which paragraph 9.2(a) of the Brochure is based, were not brought to the notice of the Hon'ble Supreme Court and that is possibly why the Hon'ble Supreme Court, while considering the review petition, granted liberty to other Banks, if the need arose, to apply to the appropriate forum for taking a fresh look at the points involved.
70. The three Circulars, referred to hereinbefore, on which paragraph 9.2(a) of the Brochure is based, make it clear that in respect of Group "A" posts, no definite directions have been given as regards reservation of posts, which has been done in respects of other posts upto Group "B". Only a concession has been provided for in respect of Group "A" posts for inclusion in the Select List of Officers belonging to Scheduled Castes and Scheduled Tribes, 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, provided they are not considered unfit for such promotion.
71. The Circulars also provide that the position of such officers 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. In my view, of the three Circulars referred to above, Office Memorandum No. l/9/69-ESTT(SCT) dated 26th March, 1970, makes it further clear that not reservation, but concessions and facilities are to be provided to Scheduled Castes and Scheduled Tribes Officers for their promotion within Class-I posts. In paragraph 2 of the said Office Memorandum it has been stated as follows :-
"In promotion by selection to posts within Class-I, which carry an ultimate salary of Rs., 2,000/- per month, or less, the Scheduled Castes, and 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 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".
Paragraph 9.2(a) of the Brochure is nothing but a reflection of the policy of the Government as contained in the three aforesaid Circulars.
72. It is, therefore, quite clear, that apart from the concessions mentioned in the three above-mentioned Circulars, as reflected in paragraph 9.2(a) of the Brochure, the Central Government, has not made any provision for reservation of posts in respect of Group 'A" posts. Certain concessions and facilities have been extended to Scheduled Castes and Scheduled Tribes in Group "A" posts to improve their chances of promotion by selection method, upto the limit prescribed, namely, the ultimate salary referred to therein, which makes such concessions applicable to officers in Group "A" posts upto Scale-III. In fact, beyond Scale-III, there is no provision even for such concession to Schedule Castes and Scheduled Tribes Officers. Mr. Majumdar's submissions that "concession" must be equated with "reservation", is unacceptable to me. No definite quota has been provided for in the matter of extending concessions to Scheduled Castes and Scheduled Tribes Officers. While reservation is in respect of posts, concession is personal to the candidate, who comes within the zone of consideration because of his position in the gradation list. Once the candidate comes within the zone of consideration, the concessions provided for become applicable to him to improve his chances of promotion. Where there is no provision for reservation, and only certain concessions are provided for, the question of maintaining a roster keeping posts reserved at different points cannot arise.
73. In view of my aforesaid findings, I am inclined to accept the submissions of Mr. Roy on this point. In the absence of any policy of the Central Government with regard to reservation in Group "A" posts, it must be held that the writ petitioners cannot get the reliefs prayed for in the writ petition. However, for purposes of promotion, those of the petitioners, who are holding Group "A" posts and are within Scale-I to Scale-Hi, will be entitled to the concessions referred to in the three Circulars dated 8th November, 1963, 11th July, 1968 and 26th March, 1970, referred: to hereinbefore, and reflected in paragraph 9.2(a) of the Brochure, for the purpose of promotion by selection.
74. The writ petition is thus disposed of. There will, however, be no order as to costs.