“32. Here, we would like to allude to the words of
Lord Denning, in Rondel v. Worsley (1967) 1 QB
443 about the conduct expected of an advocate:
“… As an advocate he is a minister of justice
equally with the Judge. … I say ‘all he
honourably can’ because his duty is not only to
his client. He has a duty to the court which is
paramount. It is a mistake to suppose that he
is the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is
none of these things. He owes allegiance to a
higher cause. It is the cause of truth and
justice. He must not consciously misstate the
facts. He must not knowingly conceal the truth.
He must not unjustly make a charge of fraud,
that is, without evidence to support it. He must
produce all the relevant authorities, even those
that are against him. He must see that his
client discloses, if ordered, the relevant
documents, even those that are fatal to his
case. He must disregard the most specific
instructions of his client, if they conflicts with
his duty to the court. The code which requires
a barrister to do all this is not a code of law. It
is the code of honour.” (QB p. 502)
(emphasis supplied)
In our opinion, the aforesaid dicta of Lord Denning
is an apt exposition of the very high standard of
moral, ethical and professional conduct expected to
be maintained by the members of legal profession.
We expect no less of an advocate/counsel in this
country.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 209 OF 2015
(arising out of Special Leave Petition (Civil) No. 4385 of 2010)
CHAIRMAN & MANAGING DIRECTOR
CENTRAL BANK OF INDIA & ORS.
.....APPELLANT(S)
VERSUS
CENTRAL BANK OF INDIA SC/ST
EMPLOYEES WELFARE ASSOCIATION & ORS.
Dated;JANUARY 09, 2015.
A.K. SIKRI, J.
Leave granted. Impleadment and intervention applications
are allowed.
2) The issue which arises for consideration in these appeals lies
within a narrow campus and is crisp one, though at the same time
it is of seminal importance for the parties before us. It relates to
the rule of reservation of the Scheduled Castes (SC) and
Scheduled Tribes (ST) in the promotion in the officer grade/scale
in the appellant Banks. There is no dispute that the appellant
Banks, which are statutory/public sector banks, are following the
applicable guidelines of the Central Government pertaining to
reservation of SC and ST employees insofar as their promotion
from clerical grade to officer grade is concerned. The question to
be answered is as to whether there is any reservation in the
promotions from one officer grade/scale to another grade/scale,
when such promotions are made on selection basis. As per the
appellant Banks, there is no rule of reservation for promotion in
the Class A (Class-I) to the posts/scales having basic salary of
more than 5,700/- and in the ₹ relevant instructions, issued in the
form of Office Memoranda, only a concession is provided in the
Civil Appeal No. of 2015 & Ors. Page 2 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 3
manner officers belonging to SC/ST category are to be
considered for promotion. To put it otherwise, the position taken
by the Banks is that there is no rule of reservation for promotions
and the candidature of these officers belonging to these
categories for promotion is to be considered on the basis of
relaxed standards. The respondents, who are SC/ST Employees'
Unions of the appellant Banks or individuals belonging to such
categories, dispute the aforesaid stand taken by the Banks.
According to them, the circular issued by the Central Government
expressly provides for such a reservation.
3) It is interesting to note that for taking their respective positions
both the parties rely upon O.M. dated 13-08-1997 issued by the
Central Government (which, of course, is to be read along with
other connected office memoranda). Thus, outcome of these
appeals would depend upon the interpretation that is to be
accorded to the said Office Memorandum dated 13-08-1997. As
the Banks are in appeal against the judgment of High Court of
Judicature at Madras rendered on 09-12-2009 whereby number
of writ appeals were disposed of, it can clearly be discerned that
insofar as High Court is concerned its interpretation to the
aforesaid circular has gone in favour of the SC/ST employees.
Civil Appeal No. of 2015 & Ors. Page 3 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 4
4) Before we revert to the fulcrum of the issue and give our answer
thereto, we deem it apposite to recapitulate in brief the historical
facts which have led to the present lis.
5) As already noted above, the appellant Banks, which are statutory
Banks and Public Sector Undertakings, have been following the
reservation policy of the Government of India as issued by the
Government from time to time. For doing so, the Promotion Policy
of each of such bank makes specific provision in this behalf. It is
also a matter of common knowledge that Ministry of Finance,
Government of India is the nodal ministry for framing policy on
reservations for financial institutions/banks. To given an example,
Regulation 1.1 of the promotion policy for officers of UCO Bank
makes such a provision in the following manner:
“The Promotion policy for officers in the Bank has
been designed in the context of the guidelines
issued by the Government from time to time under
the Officers Service Regulations.”
It will also be relevant to quote hereunder Regulation 22 of
the aforesaid promotion policy. This Regulation makes the
following reading:
“22. Concession/Relaxations etc for SC/ST,
Physically Handicapped, Ex-servicemen and Other
categories of officers;
Civil Appeal No. of 2015 & Ors. Page 4 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 5
22.1 The guidelines/ directives/ administrative
instructions issued by the Government of India
from time to time regarding relaxation/concession/
reservation etc. for SC/ST, physically handicapped,
Ex-serviceman and such other special categories
of officers in the matter of scale to scale promotions
within the Officers' Grade shall be deemed to be a
part of the policy and given effect to accordingly.”
6) It is an accepted position that identical promotion policy is framed
by each of these appellant Banks.
7) As per the aforesaid promotion policy, incorporating the
reservation policy framed by the Central Government in respect
of candidates belonging to SC/ST category, the banks are
according 15% reservation for SC and 7.5% reservation for ST
candidates. It is done at the initial level of recruitment and also for
promotion in the clerical cadre. Such a reservation is also
provided for promotion from clerical grade to the lowest rank in
the officers grade which is commonly known as Junior
Management Grade Scale-I (Scale-I). However, when it comes to
promotion from Scale-I to the next scale, which is known as
Middle Management Grade Scale-II (Scale-II), the Banks have
not been making any reservations while carrying out these
promotions. As per the Banks, it is because of Office
Memorandum No. 38012/6/83-East(SCT) dated 01-11-1990
issued by the Ministry of Personnel, Public Grievance and
Civil Appeal No. of 2015 & Ors. Page 5 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 6
Pensions (Department of Personnel and Training), Government of
India clearly stating that there is no reservation within Group 'A'
posts.
8) The matter regarding reservations in promotions was considered
by a nine Judge Bench of this Court in Indra Sawhney v. Union
of India1, which was a judgment rendered on 15-11-1992. The
Court specifically held that the reservation under Article 16(4) of
the Constitution of India is confined to initial appointment and
cannot extend to reservation in the matters of promotion. In order
to nullify the effect of the aforesaid dicta, there was an
amendment to Article 16 by Constitution (Seventy-Seventh
Amendment) Act with effect from 17-06-1995. Vide this
amendment, after Clause 4, Clause 4A was inserted in Article 16
of the Constitution, which was couched in the following language:
4A. Nothing in this article shall prevent the State
from making any provision for reservation in
matters of promotion to any class or classes of
posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not
adequately represented in the services under the
state.”
Clause (4) of Article 16 is worded as follows:
“4. Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any backward
1 (1992) Supp 3 SCC 217
Civil Appeal No. of 2015 & Ors. Page 6 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 7
class of citizens which, in the opinion of the State,
is not adequately represented in the services under
the State.
The constitutional position on the insertion of Clause 4A is
that the State is now empowered to make provision for
reservation in matter of promotions as well, in favour of SC and
ST wherever the State is of the opinion that SCs and STs are not
adequately represented in the service under the State.
Nevertheless, it is only an enabling provision which empowers the
State to make any provision for reservation for SC and ST
candidates in the matter of promotion as well.
9) In order to complete the historical narration of facts, it becomes
necessary to mention that after the aforesaid amendment, a
question had arisen as to whether a person in SC or ST category,
who gets accelerated promotion because of reservation would
also get consequential seniority in the higher post if he gets that
promotion earlier than his senior in general category. The Court
answered this question in the case of Union of India and Others
etc. v. Virpal Singh Chauhan and Others2 holding that such an
employee belonging to SC/ST category on promotion would not
get consequential seniority and his seniority will be governed by
the panel position. This led to another Constitution amendment
2 (1995) 6 SCC 684
Civil Appeal No. of 2015 & Ors. Page 7 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 8
and the Parliament enacted Constitution (Eighty-Fifth
Amendment) Act, 2001 whereby Clause 4A of Article 16 was
amended. The amended Clause 4A reads as under:
“4A. Nothing in this article shall prevent the State
from making any provision for reservation in
matters of promotion with consequential seniority to
any class or classes of posts in the services under
the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the
services under the State.”
10) The constitutional position, as it stands now, in view of the
aforesaid amendment, is that such SC/ST candidates who get the
benefit of accelerated promotion are provided consequential
seniority as well. This amendment, thus, nullifies the effect of the
judgment of this Court in Virpal Singh Chauhan (supra). Another
significant aspect which is to be noted is that this amendment
was made retrospectively from 17.06.1995, i.e. the date of
coming into force the original Clause 4A of Article 16.
11) Constitutional validity of Clause 4A of Article 16 as well as Clause
4B which was also amended vide Eighty-Fifth Constitution
Amendment, was challenged before this Court and this challenge
was repelled in the case of M. Nagaraj and others v. Union of
India and Others3. The Court specifically held that these
3 (2006) 8 SCC 212
Civil Appeal No. of 2015 & Ors. Page 8 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 9
provisions flow from Article 16(4) and, therefore do not alter the
structure of Article 16(4). Further, they do not obliterate any of the
constitutional requirement, namely, ceiling limit of 50%
(quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs, on the one
hand, and SCs/STs on the other hand, as held in Indra Sawhney
(supra). The Court, at the same time, made it clear that the ceiling
limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation
and overall administrative efficiency are the constitutional
requirements without which the structure of equality of opportunity
in Article 16 would collapse.
12) After the amendment in Article 16 of the Constitution, with
incorporation of Clause 4A therein, the Government of India
issued Office Memorandum dated 13-08-1997 as the
interpretation of this O.M. is the bone of contention. As the
outcome of these appeals largely depends on the interpretation of
this Memorandum, we feel apposite to reproduce the said O.M.
dated 13-08-1997 in toto:
“No. 36012/18/95-Esst(Res.) Pt:II
GOVERNMENT OF INDIA
Ministry of Personnel Public, Grievances and
Pensions, Department of Personnel and Training
Civil Appeal No. of 2015 & Ors. Page 9 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 10
North Block, New Delhi
Dated the 13th August, 1997
OFFICE MEMORANDUM
SUBJECT: RESERVATION FOR THE SCs/STs IN
PROMOTION
The undersigned is directed to invite
attention to this Department's OM No.
36012/37/93-Esst. (SCT) dated 19.8.1993
clarifying that the Supreme Court had, in the Indira
Sawhney case, permitted the reservation for the
Scheduled Castes and Scheduled Tribes, in
promotion, to continue for a period of five years
from 16.11.1992.
2. Consequent to the Judgment in Indira
Sawhney's case the Constitution was amended by
the Constitution (Seventy seventh Amendment)
Act, 1995 and Article 16(4A) was incorporated in
the Constitution. This article enables the State to
provide for reservation in matters of promotion, in
favour of the Scheduled Castes and the Scheduled
Tribes, which in the opinion of the State are not
adequately represented in the Services under the
State.
3. In pursuance of Article 16(4A), it has been
decided to continue the Reservation in promotion
as at present, for the Scheduled Castes and the
Scheduled Tribes in the services/posts under the
Central Government beyond 15.11.1997 till such
time as the representation of each of the above two
categories in each cadre reaches the prescribed
percentages of reservation whereafter, the
reservation in promotion shall continue to maintain
the representation to the extent of the prescribed
percentages for the respective categories.
4. All Ministries/Department are requested to
urgently bring these instructions to the notice of all
their attached/subordinate offices as also the
Public Sector Undertakings and Statutory Bodies
etc.
Sd/-
(Y.G. PARANDE)
Director (Reservation)”
Civil Appeal No. of 2015 & Ors. Page 10 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 11
Impugned Judgment
13) The respondents Associations representing SC and ST
employees had filed writ petitions in the High Court of Madras
submitting that in spite of there being a clear policy of reservation
even for promotion from one category of officer to the higher
category of officers, the appellant Banks had not been making
any provision for such reservations while carrying out the
promotions. Mandamus was sought seeking directions against
the Bank to specify such reservation to SC/ST officers as per the
promotion policy for officers. The learned Single Judge of the
High Court dismissed the writ petitions holding that Article 16(4A)
was only an enabling provision which permits the State to make
provisions for reservation insofar as promotions are concerned.
However, in the instant case, no such provision was made. No
material was produced by the writ petitioners which could
demonstrate any such specific provision for promotion.
14) The writ petitioners challenged said order by filing writ appeals
before the Division Bench. The Division Bench has taken a
contrary view. A perusal of the judgment of the Division Bench
would spell out that it has gone by the spirit behind Articles 15
and 16 of the Constitution which are in the nature of affirmative
Civil Appeal No. of 2015 & Ors. Page 11 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 12
actions that can be taken by the State in providing reservations
for the socially and educationally backward people and that
includes SC and ST classes. It has pointed out that Article 16(4)
is specifically designed to give a due share in the State power to
those who have remained out of it mainly on account of their
social, educational, economic backwardness as reservation
affords such classes of citizens a golden opportunity to serve the
nation and thus gain security, status, comparative affluence and
influence in decision making process. It was with this spirit in
mind Clause 4A was inserted introducing an enabling provision
for providing reservation in the matter of promotion as well. The
High Court thereafter took note of the statistics that was placed
on record to show the strength of SC/ST officers in various
grades/scales/cadres in respect of UCO Bank as well as Central
Bank of India and found that there was hardly any representation
in the higher scales, what to talk of adequate representation. The
figures given in respect of Central Bank of India are noted in para
22 of the impugned judgment, stating as under:
“22. ......A consolidated statement for the
promotions from the year 1997 to 2008 in MMG:IIIIV:,
SMG: IV-V; SMG V-VI; TMG VI-TMG VII would
depict a bleak picture regarding the entire aspect
since least or no presentation for SC/ST could be
seen glaringly. As per these calculations for the
total promotions of 20 posts, only one SC
candidate got promotion in the year 2007 and for a
Civil Appeal No. of 2015 & Ors. Page 12 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 13
total promotions of 171, within these categories
only nine SC candidates got promotion. In
promotions effected for the years 1997 and 2002,
respectively for 19 posts and six posts, no SC/ST
candidate was offered promotion. In the year 1999,
for a total number of 126 posts, only one SC
candidate was given promotion. Likewise, for a
whopping 308 numbered of promotions in the year
2006 a meager 36 candidates of SC/ST were
promoted.”
The Court also noticed almost identical feature in UCO Bank
giving the following details :
“23. …....As per the scale wise representation
of SC/ST officers as on 31.3.2008 in the UCO
Bank, in Scale IV posts there is a short fall of 50
SC officers and 31 ST officers in Scale V posts,
there is a short fall of 10 SC officers and 7 ST
officers; in Scale VI, there is a short fall of 5 SC
officers and 2 ST officers and in Scale VII posts,
there is a short fall of 3 SC officers and one ST
officer.”
15) Office Memorandum dated 13-08-1997 has been read in the light
of the aforesaid constitutional spirit as well as inadequate
representation of SC/ST category officers in the Banks holding
that the mandate of the said O.M. was to provide for reservation.
16) While holding so, the High Court also repelled the contention of
the Banks predicated on Article 335 of the Constitution on the
basis of which it was contended that introduction of rule of
reservation in promotion would reduce the efficiency of
administration of Banks. The Court specifically took note of
Civil Appeal No. of 2015 & Ors. Page 13 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 14
Constitution Eighty-Second Amendment which was made
effective from 08-09-2000 and provides that nothing in this Article
shall prevent in making any provision in favour of the members of
the Scheduled Castes and Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the standards of
evaluation, for reservation in matters of promotion to any class or
classes of services or posts in connection with the affairs of the
Union or of a State. In the opinion of the High Court, when
Constitution has given such extra protection to the under
privileged communities so as to enjoy equal opportunities as
guaranteed by the Constitution, the Banks are not justified in
sleeping over the matter providing reservations in promotions for
a decade with no good reasons to offer.
17) The position taken by both the parties remains the same before
us as well. According to the Banks, vide O.M. dated 13-08-1997
“it has been decided to continue the reservation in promotion as
at present, for the Scheduled Castes and the Scheduled Tribes in
the services/posts...........”. It is, thus, argued that this O.M. did not
make any reservation in the matter of promotion but whatever
was existing earlier has been continued. M/s. C.S. Vaidyanathan
and Raju Ramachandran, learned Senior Advocates, who argued
Civil Appeal No. of 2015 & Ors. Page 14 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 15
for these Banks laid strong emphasis on the aforesaid language
employed in the O.M. and submitted that only existing position
continued and the position which was existing was that there was
no specific provision for reservation. The only provision which
existed was judging the candidature of SC/ST candidates for
promotion in Class A (Class I) service drawing more than basic
salary of ₹5,700/-, to apply relaxed standards. It was submitted
that such a provision existed in O.M. dated 01-11-1990. It was
pointed that in para 2 of this O.M. a mention was made about the
concession which was to be given to the officers belonging to
these categories and in para 3 it was amply clarified that there is
no reservation in promotion by selection. Paras 2and 3 of O.M.
dated 01-11-1990 read as under:
“2. Though in the OM 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
and Scheduled Tribes will be given concession
namely “those 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 select list has to be
drawn up, would be included in that list provided
they are not considered unfit for promotion”, doubts
have been expressed in certain quarters as to
whether the concession given herein above is a
reservation or a concession.
3. It is hereby clarified that in promotion by
selection within group A posts which carry an
Civil Appeal No. of 2015 & Ors. Page 15 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 16
ultimate salary of Rs. 5700/- p.m. there is no
reservation.”
18) It was argued that a conjoint reading of the aforesaid two
circulars, namely, O.M. dated 01-11-1990 and 13-08-1997 would
manifest that the provision was made for concession and not
reservation in the matter of promotion. Reliance was placed on
two judgments of this Court where distinction between concession
and reservation is explained lucidly:
(i) National Federation of S.B.I. and Others v. Union of
India and Others4
“15. In 1987, the Government of India issued the
7th Edn. of the said Brochure in which para 9.2,
corresponding to the one quoted above, reads as
follows:
MHA OM No. 1/9/69. Estt.(SCT) dated 26-3-70 and
Deptt. of Personnel & AR OM No. 1/10/74-Estt.
(SCT) dated 23-12-1974
“9.2 Promotion by selection method.— (a)
Promotions by selection within Group A
(Class-I).
In promotions by selection to posts within
Group A (Class I) which carry an ultimate
salary of Rs 2000 per month, or less, (Rs 2250
per month or less in the revised scale) there is
no reservation, but 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 been
drawn up, would be included in that list
provided they are not considered unfit for
4 (1995) 3 SCC 532
Civil Appeal No. of 2015 & Ors. Page 16 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 17
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 I).
(i) Scheduled Castes/Scheduled Tribes
officers in Group A (Class I) 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 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.”
xx xx xx
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 dated 26-3-1970
deals — there are no orders of the Government of
India applying the rule of reservation. We have
referred hereinbefore to the earlier Memorandum
dated 11-7-1968 (which in turn refers to a yet
earlier Memorandum dated 8-11-1963). Those
earlier Memorandums provide for reservation 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 26-3-1970
Civil Appeal No. of 2015 & Ors. Page 17 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 18
provide for such reservation. The idea is selfevident.
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 30-5-1981 and the
subsequent ones do not amend or modify the
Office Memorandum dated 26-3-1970 but merely
explain it. They make explicit what is implicit in it.
So is the rendering of para 9.2 in the 7th Edn. 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 26-3-1970 is provided in that
behalf. It cannot, therefore, be said that either the
letters of the Ministry of Finance or the rendering of
para 9.2 in the 7th Edn. of the Brochure is
inconsistent with the Memorandum dated 26-3-
1970 or that they are contrary to the orders of the
Government.
xx xx xx
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 are entitled to
the concession contained in para 2 of the Office
Memorandum dated 26-3-1970 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 considered unfit for promotion. (This rule
Civil Appeal No. of 2015 & Ors. Page 18 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 19
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
Promotion 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. This is also the purport of para 9 of the
Brochure insofar as it deals with promotions within
Class I.”
(ii) Pragjyotish Gaonlia Bank (Now known as Assam
Gramin Vikash Bank) and Another v. Brijlal Dass5
“24. Having carefully considered the submissions
made on behalf of the respective parties, we are
inclined to agree with Mr Mehta that the provision
relating to reservation posts extracted hereinabove,
contained in the Circular dated 10-6-1997, has
been wrongly interpreted by the Division Bench of
the High Court. The said condition is in the nature
of a concession as was contemplated in the
Circular dated 9-11-1994, issued by NABARD in
order to give an opportunity to a Scheduled Caste
or Scheduled Tribe candidate to be automatically
appointed, if he came within the number of
vacancies available. It was a concession to enable
such a candidate to avoid the process of selection,
which all the other candidates were required to
undergo.
25. The said provision has been very elaborately
explained by a three-Judge Bench of this Court in
National Federation of SBI v. Union of India; (1995)
3 SCC 532 . As has been explained in the said
judgment, the zone of consideration is the list of
selected candidates chosen in order of seniority to
be considered for the purpose of filling up the
available vacancies and merely by coming within
5 (2009) 3 SCC 323
Civil Appeal No. of 2015 & Ors. Page 19 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 20
the zone of consideration a Scheduled Caste or
Scheduled Tribe candidate would not be entitled to
automatic selection. The concession relating to
reservation does not mean that any of the vacant
posts were required to be kept reserved for such
Scheduled Caste or Scheduled Tribe candidate. It
is only when such a candidate came within the
number of vacancies that such a concession would
be applicable to him/her for appointment without
going through the selection process.
19) Learned counsel appearing for respondents, including Dr. Krishan
Singh Chauhan, Mr. E.C. Vidya Sagar, Mr. A. Subba Rao,
Mr.Satyajit A. Desai and Mr. C.K. Chandrasekhar, Advocates,
placed strong reliance on the reasons given by the High Court in
support of its verdict projecting dismal state of affairs virtually no
representation of the SC/ST employees in the officers category,
particularly, scale IV and above.
20) It was also argued by these respondents that after the impugned
judgment of the Division Bench allowing writ appeals of these
respondents, on 14-01-2010 and 01-02-2010, the Union
Government had directed the implementation of the impugned
High Court judgment. The Bank has filed the SLP, thereafter.
Their present stand that there will be no reservation but only
concession by considering officers who are senior enough to be
within the zone and are not declared unfit, is misleading. In fact, a
Bill was passed in both the Houses of the Parliament by the
Civil Appeal No. of 2015 & Ors. Page 20 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 21
previous Government to grant reservations in promotions at all
levels, (i.e. 117th Constitutional Amendment), which had lapsed
subsequently. It was argued that the Union Government cannot
take a different stand now.
21) The claim of the Banks that grant of reservation in promotion from
Scale-I level onwards would affect efficiency, was also refuted by
contending that the officers belonging to SC/ST have been
promoted only on the basis of their own merit/performance. It
was submitted that the State cannot act contrary to Constitutional
provisions. It was submitted that the decision dated 10-03-1995 in
National Federation of S.B.I. (supra) and relied by the Banks
related to pre-77th Amendment, which came to be passed on 17-
06-1995. As per them, the decision in M. Nagaraj (supra)
answers the issues raised by the Banks. Pointed reference was
made to the 117th Amendment Bill, which was taken judicial notice
of in Himachal Pradesh Scheduled Tribes Employees
Federation and another v. Himachal Pradesh Samanaya Varg
Karamchari Kalayan Mahasangh and others6. Attention was
drawn to paras 32 to 34 of the said judgment, which are as under:
“32. Here, we would like to allude to the words of
Lord Denning, in Rondel v. Worsley (1967) 1 QB
443 about the conduct expected of an advocate:
6 (2013) 10 SCC 308
Civil Appeal No. of 2015 & Ors. Page 21 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 22
“… As an advocate he is a minister of justice
equally with the Judge. … I say ‘all he
honourably can’ because his duty is not only to
his client. He has a duty to the court which is
paramount. It is a mistake to suppose that he
is the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is
none of these things. He owes allegiance to a
higher cause. It is the cause of truth and
justice. He must not consciously misstate the
facts. He must not knowingly conceal the truth.
He must not unjustly make a charge of fraud,
that is, without evidence to support it. He must
produce all the relevant authorities, even those
that are against him. He must see that his
client discloses, if ordered, the relevant
documents, even those that are fatal to his
case. He must disregard the most specific
instructions of his client, if they conflicts with
his duty to the court. The code which requires
a barrister to do all this is not a code of law. It
is the code of honour.” (QB p. 502)
(emphasis supplied)
In our opinion, the aforesaid dicta of Lord Denning
is an apt exposition of the very high standard of
moral, ethical and professional conduct expected to
be maintained by the members of legal profession.
We expect no less of an advocate/counsel in this
country.
33. Here, in this case, on 26-4-2010 a statement
was made on behalf of the State of H.P. that “the
State intends to collect more details with regard to
representation of the SCs/STs and to pass
appropriate orders within a reasonable time i.e.
approximately within three months after collecting
the necessary details and datas”. Having very
deftly avoided a decision on merits in SLP (C) No.
30143 of 2009, the State has totally failed to live up
to the solemn statement made to this Court. It has
hedged and hemmed and prevaricated from 26-4-
2010 till date. In spite of the requisite data being
available, the policy of reservation already adopted
by the State has not been implemented. We,
therefore, do not agree with Dr Dhavan that the
Civil Appeal No. of 2015 & Ors. Page 22 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 23
applicants are seeking a mandamus to adopt a
policy in reservation. From the above narration, it is
evident that the applicants want the State to
implement its own decisions. The prayer is:
“Direct the respondent/State Government to
decide the case in time-bound manner on the
basis of data already available/submitted to
the Cabinet Sub-Committee on 25-4-2011
within a period of one month and;
Further direct stay on all promotions pending
decision taken in this case.”
34. The final excuse offered by the State for not
granting the aforesaid relief is that the State now
awaits the finalisation of the 117th Constitution
Amendment. We decline to accept the reasons put
forward for not honouring the statement solemnly
made to this Court on 26-4-2010. This Court has
been more than considerate to the requests made
by the State for extension of time. This last excuse
about awaiting the finalisation of the proposed
Hundred-seventeenth Constitutional Amendment is
the proverbial last straw on the camel’s back. As
stated earlier, the proposed 117th Constitutional
Amendment would not adversely affect the merits
of the clam (sic) of the petitioner for grant of
promotion with consequential seniority. By the
aforesaid proposed Amendment, the existing Article
16 clause (4-A) is to be substituted by the following
clause (4-A)—
“16. (4-A) Notwithstanding anything contained
elsewhere in the Constitution, the Scheduled
Castes and the Scheduled Tribes notified
under Article 341 and Article 342, respectively,
shall be deemed to be backward and nothing
in this article or in Article 335 shall prevent the
State from making any provision for
reservation in matters of promotions, with
consequential seniority, to any class or classes
of posts in the services under the State in
favour of the Scheduled Castes and the
Scheduled Tribes to the extent of the
percentage of reservation provided to the
Scheduled Castes and the Scheduled Tribes
in the services of the State.”
Civil Appeal No. of 2015 & Ors. Page 23 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 24
22) Much reliance was also placed on a recent decision of this Court
in the case Rohtas Bhankhar and Others v. Union of India and
Another7, on the basis of which it was contended that the reliance
of the Banks in that case on O.M. dated 22.07.1997 was totally
misplaced as, inasmuch as, in this case the said O.M. is held to
be bad in law as per the discussion contained in the following
paragraphs:
“9. We are in respectful agreement with the
decision in UT, Chandigarh v. Kuldeep Singh,
(1997) 9 SCC 199 and approve the same.
Ordinarily, we would have sent the matter to the
regular Bench for disposal of the matters but
having regard to the nature of controversy and the
fact that the Central Administrative Tribunal, Delhi
(for short “the Tribunal”) has followed S. Vinod
Kumar v. Union of India, (1996) 6 SCC 580 which is
not good law and resultantly the 1997 OM is also
illegal, in our view, the agony of the appellants
need not be prolonged as they are entitled to the
reliefs.
10. Consequently, the civil appeals are allowed.
The impugned order is set aside. The 1997 OM is
declared illegal. The respondents are directed to
modify the results in the Section Officers/
Stenographers (Grade B/Grade I) Limited
Departmental Competitive Examination, 1996 by
providing for reservation and extend all
consequential reliefs to the appellants, if not
granted so far. No costs.”
23) Before discussing the main issue involved, it would be in the
fitness of things to iron out some of the creases surrounding the
7 (2014) 8 SCC 872
Civil Appeal No. of 2015 & Ors. Page 24 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 25
main issue. In fact, this exercise would facilitate understanding
the precise tenor of the issue that needs to be addressed and
answered.
24) In the first instance, we make it clear that there is no dispute
about the constitutional position envisaged in Articles 15 and 16,
insofar as these provisions empower the State to take affirmative
action in favour of SC/ST category persons by making
reservations for them in the employment in the Union or the State
(or for that matter, public sector/authorities which are treated as
State under Article 12 of the Constitution). The laudable objective
underlying these provisions is also to be kept in mind while
undertaking any exercise pertaining to the issues touching upon
the reservation of such SC/ST employees. Further, such a
reservation can not only be made at the entry level but is
permissible in the matters of promotions as wells. At the same
time, it is also to be borne in mind that Clauses 4 and 4A of Article
16 of the Constitution are only the enabling provisions which
permit the State to make provision for reservation of these
category of persons. Insofar as making of provisions for
reservation in matters of promotion to any class or classes of post
is concerned, such a provision can be made in favour of SC/ST
Civil Appeal No. of 2015 & Ors. Page 25 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 26
category employees if, in the opinion of the State, they are not
adequately represented in services under the State. Thus, no
doubt, power lies with the State to make a provision, but, at the
same time, courts cannot issue any mandamus to the State to
necessarily make such a provision. It is for the State to act, in a
given situation, and to take such an affirmative action. Of course,
whenever there exists such a provision for reservation in the
matters of recruitment or the promotion, it would bestow an
enforceable right in favour of persons belonging to SC/ST
category and on failure on the part of any authority to reserve the
posts, while making selections/promotions, the beneficiaries of
these provisions can approach the Court to get their rights
enforced. What is to be highlighted is that existence of provision
for reservation in the matter of selection or promotion, as the case
may be, is the sine qua non for seeking mandamus as it is only
when such a provision is made by the State, a right shall accrue
in favour of SC/ST candidates and not otherwise.
25) It is not in dispute that the rule of reservation is followed for
promotions from clerical grade to the lowest rank in the officer
grade. The question, however, is as to whether there is any
provision for reservation when promotion from a particular rank in
the officer grade is to be made to the next rank in the said grade,
Civil Appeal No. of 2015 & Ors. Page 26 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 27
namely, from Scale-I to Scale-II, Scale-II to Scale-III and so on.
26) While considering this question, we have to keep in mind that
reservation policy of the Central Government is applicable to the
appellant Banks. It is the common case of both the parties. In
fact, as already noted above, there is a specific provision to this
effect in the promotion policies framed by the appellant Banks.
27) Next thing which is to be kept in mind is the two office
memoranda, one dated 1.11.1990 and the other dated 13.8.1997,
which are referred to by the counsel for the parties. We have
already reproduced the aforesaid two office memoranda. Insofar
as, Office Memorandum dated 1.11.1990 is concerned, a bare
reading of this provision would reflect the following two aspects:
(a) In promotion by selection within Class-I (Group-A) post, the
SC/ST candidates are to be given 'concession'.
(b) This concession is available to those SC/ST employees 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
drawn up.
Thus, first requirement is that such SC/ST candidates who come
within the zone of consideration for promotion are senior enough
to be within the number of vacancies. Once they come within the
Civil Appeal No. of 2015 & Ors. Page 27 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 28
aforesaid zone of consideration, they have to be included in the
list, provided they are not considered unfit for promotion. It clearly
follows from the above that once they come under the zone of
consideration for promotion so as to be within the number of
vacancies for which select list has to be drawn up, for such SC/ST
employees the only embargo to deprive them of promotion is
when they are found unfit for promotion. For other officers in
general category, depending upon the rule of promotion, there
may be much stricter criteria based on comparative merit or
selection by merit, etc. However, in case of such senior enough
SC/ST candidates, the criteria appears to be seniority, subject to
fitness.
(c) This OM specifically clears the doubt that the aforesaid
provision is only a concession and not reservation in favour of
SC/ST candidates, inasmuch as para 3 of the OM states that “It is
hereby clarified that in promotion by selection within Group-A
post, which carry ultimate salary of ₹ 5,700/- per month, there is
no reservation”. It is clear from the above that insofar as Office
Memorandum dated 1.11.1990 is concerned, there was no
provision for reservation made in favour of SC/ST candidates in
promotion by selection within Group-A posts carrying an ultimate
salary of ₹5,700 per month.
Civil Appeal No. of 2015 & Ors. Page 28 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 29
28) No doubt, this Office Memorandum was issued in the year 1990,
that is much before amendment in Article 16 of the Constitution,
which was carried out in the year 1995 by inserting Clause 4A.
However, as already pointed out above, Clause 4A is an enabling
provision which empowers the State to make reservations in the
matter of promotions as well as in favour of SC/ST employees.
There was no such provision till 1.11.1990 in the matter of
promotion by selection within Group-A post which carry an
ultimate salary of ₹5,700/- per month.
29) Having understood this, we come to Office Memoradum dated
13.8.1997 to find out as to whether this Memorandum makes any
provision for reservations in the matter of promotion in favour of
SC/ST employees, inasmuch as no other Office Memorandum or
Circular or Rule, etc. is produced on record for this purpose.
30) We have already noted above that a nine Judge Bench decision
of this Court in Indra Sawhney (supra) held that Clause 4 of
Article 16 does not cover the cases of promotion, meaning
thereby, as per the said clause no reservation in favour of SC/ST
persons in the matter of promotions is permissible. It is to nullify
the effect of this dicta in the said judgment that Clause 4A was
Civil Appeal No. of 2015 & Ors. Page 29 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 30
inserted in Article 16 by Constitution's Seventy-Seventh
Amendment with effect from 17-06-1995. However, it is also a
matter of record that in Indra Sawhney's case (supra), this Court
had also clarified that reservation for SC/STs in promotion would
continue for a period of five years from 16-11-1992. What it
meant was that if there is a provision of reservation made in the
matter of promotions, notwithstanding the dicta in the said case
that such a reservation is not permissible, those provisions were
allowed to continue for a period of five years from 16-11-1992.
Thereafter, before the expiry of five years, constitutional provision
was incorporated in the form of Clause 4A by making provision for
reservation in the matter of promotions as well. These facts are
taken note of in first two paras of Office Memorandum dated 13-
08-1997. Thereafter, in the 3rd para of the said Memorandum, it is
provided:
“3. In pursuance of Article 16(4A), it has been
decided to continue the Reservation in promotion
as at present, for the Scheduled Castes and the
Scheduled Tribes in the services/posts under the
Central Government beyond 15.11.1997 till such
time as the representation of each of the above two
categories in each cadre reaches the prescribed
percentages of reservation whereafter, the
reservation in promotion shall continue to maintain
the representation to the extent of the prescribed
percentages for the respective categories.”
Civil Appeal No. of 2015 & Ors. Page 30 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 31
31) What is decided is to continue the reservation in promotion, which
was prevalent at that time, for the SC/ST employees, which was
to continue in terms of the judgment of this Court in Indra
Sawhney (supra) till 15-11-1997, even beyond 15-11-1997, till
such time as the representation of each of the above two
categories in each cadre reaches the prescribed percentages of
reservation whereof. It is, thus, crystal clear from a bare reading
of this para that the existing provision relating to reservation in
promotion was allowed to continue beyond 15-11-1997. Thus,
this Memorandum did not make any new provision for reservation
in promotion in favour of SC/ST employees.
32) We have already noticed above that in matters of promotion
within Group-A posts, which carry an ultimate salary of ₹5,700/-
per month, there was no provision for any reservation. On a
conjoint reading of these two Office Memorandums, in the
absence of any other provision or Rule evidencing such a
reservation in the matter of promotions, it cannot be said that
there was reservation in promotion within Group-A posts upto the
ultimate salary of 5,700/- per month. ₹ The High Court in the
impugned judgment has gone by the lofty ideals enshrined in
Articles 15 and 16 of the Constitution as well as the fact that in
these Banks there is no adequate representation of SC/ST
Civil Appeal No. of 2015 & Ors. Page 31 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 32
category of officers in Group-IV and above. That may be so. It
can only provide justification for making a provision of this nature.
However, in the absence of such a provision, same cannot be
read by overstretching the language of Office Memorandum dated
13-08-1997. It is for the State to take stock of the ground realities
and take a decision as to whether it is necessary to make
provision for reservation in promotions to the aforesaid post as
well.
33) Having said so, one other aspect which has to be necessarily
addressed to at this stage calls for our attention. This aspect,
which we are going to point out now, has been totally glossed
over by the learned Single Judge as well as the Division Bench of
the High Court in their respective judgments.
34) It is provided in Office Memorandum dated 01-11-1970, and we
have repeatedly stated above, that there is no reservation in
promotion by selection within only those Group-A posts which
carry an ultimate salary of ₹5,700/- per month. In such cases, it
is only concession that applies. We have accepted the contention
of the appellant Banks in this behalf, as per the discussion
contained hereinabove. Significantly, what follows is that
reservation is provided in promotion by selection qua those posts
Civil Appeal No. of 2015 & Ors. Page 32 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 33
which carry an ultimate salary of less than ₹5,700/- per month
(pre-revised).
35) The Department of Public Enterprises had issued an Office
Memorandum dated 08-11-2004 as to the salary limit of ₹5,700/-
mentioned for the purposes of reservation as ₹18,300/- (5th
Central Pay Commission) and in the case of Public Sector
Undertakings who are following Industrial Dearness Allowance
(IDA) pattern, the monetary ceiling was fixed as ₹20,800/- (from
01-01-1996, i.e. 5th Central Pay Commission). The said pay
ceiling is achieved in the appellant Banks only when an officer
reaches Scale-VII. As a fortiorari, the policy of no reservation in
the matter of promotion is applicable only from Scale-VII and
above. It, therefore, clearly follows that insofar as promotion from
Scale-I to Scale-II, Scale-II to Scale-III, Scale-III to Scale-IV,
Scale-IV to Scale-V, Scale-V to Scale-VI are concerned,
reservation is to be provided. The appellant Banks, therefore,
cannot take umbrage under the aforesaid Memorandum and deny
reservation in favour of SC/ST employees while carrying out
promotions upto to Scale-VI.
Civil Appeal No. of 2015 & Ors. Page 33 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 34
36) Upshot of the aforesaid discussion would be to allow these
appeals partly. While setting aside the impugned judgment of the
High Court to the extent it holds that Office Memorandum dated
13-08-1997 makes a provision for reservation, it is clarified that at
present there is no provision for reservation in promotion by
selection only in respect of those posts which carry an ultimate
salary of 5,700/- per ₹ month (revised to ₹18,300/- by 5th Central
Pay Commission and ₹20,800/- per month in respect of those
Public Sector Undertakings following IDA pattern). Qua appellant
Banks, that would be in respect of Scale-VII and above.
Therefore, to carry out promotions from Scale-I upwards upto
Scale-VI, reservation in promotion in favour of SC/ST employees
has to be given. It would have the effect of allowing the writ
petitions filed by the respondents/unions partly with directions to
the appellant Banks to make provision for reservations while
carrying out promotions from Scale-I to to Scale-II and upward
upto Scale-VI.
37) In view of the above, Contempt Petition (Civil) No. 320 of 2010 is
disposed of with directions to the appellant Banks to carry out the
promotions by adopting the procedure mentioned in this
judgment.
Civil Appeal No. of 2015 & Ors. Page 34 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 35
38) In the peculiar facts of this case, we leave the parties to bear their
own costs.
.............................................J.
(J. CHELAMESWAR)
.............................................J.
(A.K. SIKRI)
NEW DELHI;
JANUARY 09, 2015.
Print Page
Lord Denning, in Rondel v. Worsley (1967) 1 QB
443 about the conduct expected of an advocate:
“… As an advocate he is a minister of justice
equally with the Judge. … I say ‘all he
honourably can’ because his duty is not only to
his client. He has a duty to the court which is
paramount. It is a mistake to suppose that he
is the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is
none of these things. He owes allegiance to a
higher cause. It is the cause of truth and
justice. He must not consciously misstate the
facts. He must not knowingly conceal the truth.
He must not unjustly make a charge of fraud,
that is, without evidence to support it. He must
produce all the relevant authorities, even those
that are against him. He must see that his
client discloses, if ordered, the relevant
documents, even those that are fatal to his
case. He must disregard the most specific
instructions of his client, if they conflicts with
his duty to the court. The code which requires
a barrister to do all this is not a code of law. It
is the code of honour.” (QB p. 502)
(emphasis supplied)
In our opinion, the aforesaid dicta of Lord Denning
is an apt exposition of the very high standard of
moral, ethical and professional conduct expected to
be maintained by the members of legal profession.
We expect no less of an advocate/counsel in this
country.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 209 OF 2015
(arising out of Special Leave Petition (Civil) No. 4385 of 2010)
CHAIRMAN & MANAGING DIRECTOR
CENTRAL BANK OF INDIA & ORS.
.....APPELLANT(S)
VERSUS
CENTRAL BANK OF INDIA SC/ST
EMPLOYEES WELFARE ASSOCIATION & ORS.
Dated;JANUARY 09, 2015.
Leave granted. Impleadment and intervention applications
are allowed.
2) The issue which arises for consideration in these appeals lies
within a narrow campus and is crisp one, though at the same time
it is of seminal importance for the parties before us. It relates to
the rule of reservation of the Scheduled Castes (SC) and
Scheduled Tribes (ST) in the promotion in the officer grade/scale
in the appellant Banks. There is no dispute that the appellant
Banks, which are statutory/public sector banks, are following the
applicable guidelines of the Central Government pertaining to
reservation of SC and ST employees insofar as their promotion
from clerical grade to officer grade is concerned. The question to
be answered is as to whether there is any reservation in the
promotions from one officer grade/scale to another grade/scale,
when such promotions are made on selection basis. As per the
appellant Banks, there is no rule of reservation for promotion in
the Class A (Class-I) to the posts/scales having basic salary of
more than 5,700/- and in the ₹ relevant instructions, issued in the
form of Office Memoranda, only a concession is provided in the
Civil Appeal No. of 2015 & Ors. Page 2 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 3
manner officers belonging to SC/ST category are to be
considered for promotion. To put it otherwise, the position taken
by the Banks is that there is no rule of reservation for promotions
and the candidature of these officers belonging to these
categories for promotion is to be considered on the basis of
relaxed standards. The respondents, who are SC/ST Employees'
Unions of the appellant Banks or individuals belonging to such
categories, dispute the aforesaid stand taken by the Banks.
According to them, the circular issued by the Central Government
expressly provides for such a reservation.
3) It is interesting to note that for taking their respective positions
both the parties rely upon O.M. dated 13-08-1997 issued by the
Central Government (which, of course, is to be read along with
other connected office memoranda). Thus, outcome of these
appeals would depend upon the interpretation that is to be
accorded to the said Office Memorandum dated 13-08-1997. As
the Banks are in appeal against the judgment of High Court of
Judicature at Madras rendered on 09-12-2009 whereby number
of writ appeals were disposed of, it can clearly be discerned that
insofar as High Court is concerned its interpretation to the
aforesaid circular has gone in favour of the SC/ST employees.
Civil Appeal No. of 2015 & Ors. Page 3 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 4
4) Before we revert to the fulcrum of the issue and give our answer
thereto, we deem it apposite to recapitulate in brief the historical
facts which have led to the present lis.
5) As already noted above, the appellant Banks, which are statutory
Banks and Public Sector Undertakings, have been following the
reservation policy of the Government of India as issued by the
Government from time to time. For doing so, the Promotion Policy
of each of such bank makes specific provision in this behalf. It is
also a matter of common knowledge that Ministry of Finance,
Government of India is the nodal ministry for framing policy on
reservations for financial institutions/banks. To given an example,
Regulation 1.1 of the promotion policy for officers of UCO Bank
makes such a provision in the following manner:
“The Promotion policy for officers in the Bank has
been designed in the context of the guidelines
issued by the Government from time to time under
the Officers Service Regulations.”
It will also be relevant to quote hereunder Regulation 22 of
the aforesaid promotion policy. This Regulation makes the
following reading:
“22. Concession/Relaxations etc for SC/ST,
Physically Handicapped, Ex-servicemen and Other
categories of officers;
Civil Appeal No. of 2015 & Ors. Page 4 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 5
22.1 The guidelines/ directives/ administrative
instructions issued by the Government of India
from time to time regarding relaxation/concession/
reservation etc. for SC/ST, physically handicapped,
Ex-serviceman and such other special categories
of officers in the matter of scale to scale promotions
within the Officers' Grade shall be deemed to be a
part of the policy and given effect to accordingly.”
6) It is an accepted position that identical promotion policy is framed
by each of these appellant Banks.
7) As per the aforesaid promotion policy, incorporating the
reservation policy framed by the Central Government in respect
of candidates belonging to SC/ST category, the banks are
according 15% reservation for SC and 7.5% reservation for ST
candidates. It is done at the initial level of recruitment and also for
promotion in the clerical cadre. Such a reservation is also
provided for promotion from clerical grade to the lowest rank in
the officers grade which is commonly known as Junior
Management Grade Scale-I (Scale-I). However, when it comes to
promotion from Scale-I to the next scale, which is known as
Middle Management Grade Scale-II (Scale-II), the Banks have
not been making any reservations while carrying out these
promotions. As per the Banks, it is because of Office
Memorandum No. 38012/6/83-East(SCT) dated 01-11-1990
issued by the Ministry of Personnel, Public Grievance and
Civil Appeal No. of 2015 & Ors. Page 5 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 6
Pensions (Department of Personnel and Training), Government of
India clearly stating that there is no reservation within Group 'A'
posts.
8) The matter regarding reservations in promotions was considered
by a nine Judge Bench of this Court in Indra Sawhney v. Union
of India1, which was a judgment rendered on 15-11-1992. The
Court specifically held that the reservation under Article 16(4) of
the Constitution of India is confined to initial appointment and
cannot extend to reservation in the matters of promotion. In order
to nullify the effect of the aforesaid dicta, there was an
amendment to Article 16 by Constitution (Seventy-Seventh
Amendment) Act with effect from 17-06-1995. Vide this
amendment, after Clause 4, Clause 4A was inserted in Article 16
of the Constitution, which was couched in the following language:
4A. Nothing in this article shall prevent the State
from making any provision for reservation in
matters of promotion to any class or classes of
posts in the services under the State in favour of
the Scheduled Castes and the Scheduled Tribes
which, in the opinion of the State, are not
adequately represented in the services under the
state.”
Clause (4) of Article 16 is worded as follows:
“4. Nothing in this article shall prevent the State
from making any provision for the reservation of
appointments or posts in favour of any backward
1 (1992) Supp 3 SCC 217
Civil Appeal No. of 2015 & Ors. Page 6 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 7
class of citizens which, in the opinion of the State,
is not adequately represented in the services under
the State.
The constitutional position on the insertion of Clause 4A is
that the State is now empowered to make provision for
reservation in matter of promotions as well, in favour of SC and
ST wherever the State is of the opinion that SCs and STs are not
adequately represented in the service under the State.
Nevertheless, it is only an enabling provision which empowers the
State to make any provision for reservation for SC and ST
candidates in the matter of promotion as well.
9) In order to complete the historical narration of facts, it becomes
necessary to mention that after the aforesaid amendment, a
question had arisen as to whether a person in SC or ST category,
who gets accelerated promotion because of reservation would
also get consequential seniority in the higher post if he gets that
promotion earlier than his senior in general category. The Court
answered this question in the case of Union of India and Others
etc. v. Virpal Singh Chauhan and Others2 holding that such an
employee belonging to SC/ST category on promotion would not
get consequential seniority and his seniority will be governed by
the panel position. This led to another Constitution amendment
2 (1995) 6 SCC 684
Civil Appeal No. of 2015 & Ors. Page 7 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 8
and the Parliament enacted Constitution (Eighty-Fifth
Amendment) Act, 2001 whereby Clause 4A of Article 16 was
amended. The amended Clause 4A reads as under:
“4A. Nothing in this article shall prevent the State
from making any provision for reservation in
matters of promotion with consequential seniority to
any class or classes of posts in the services under
the State in favour of the Scheduled Castes and
the Scheduled Tribes which, in the opinion of the
State, are not adequately represented in the
services under the State.”
10) The constitutional position, as it stands now, in view of the
aforesaid amendment, is that such SC/ST candidates who get the
benefit of accelerated promotion are provided consequential
seniority as well. This amendment, thus, nullifies the effect of the
judgment of this Court in Virpal Singh Chauhan (supra). Another
significant aspect which is to be noted is that this amendment
was made retrospectively from 17.06.1995, i.e. the date of
coming into force the original Clause 4A of Article 16.
11) Constitutional validity of Clause 4A of Article 16 as well as Clause
4B which was also amended vide Eighty-Fifth Constitution
Amendment, was challenged before this Court and this challenge
was repelled in the case of M. Nagaraj and others v. Union of
India and Others3. The Court specifically held that these
3 (2006) 8 SCC 212
Civil Appeal No. of 2015 & Ors. Page 8 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 9
provisions flow from Article 16(4) and, therefore do not alter the
structure of Article 16(4). Further, they do not obliterate any of the
constitutional requirement, namely, ceiling limit of 50%
(quantitative limitation), the concept of creamy layer (qualitative
exclusion), the sub-classification between OBCs, on the one
hand, and SCs/STs on the other hand, as held in Indra Sawhney
(supra). The Court, at the same time, made it clear that the ceiling
limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation
and overall administrative efficiency are the constitutional
requirements without which the structure of equality of opportunity
in Article 16 would collapse.
12) After the amendment in Article 16 of the Constitution, with
incorporation of Clause 4A therein, the Government of India
issued Office Memorandum dated 13-08-1997 as the
interpretation of this O.M. is the bone of contention. As the
outcome of these appeals largely depends on the interpretation of
this Memorandum, we feel apposite to reproduce the said O.M.
dated 13-08-1997 in toto:
“No. 36012/18/95-Esst(Res.) Pt:II
GOVERNMENT OF INDIA
Ministry of Personnel Public, Grievances and
Pensions, Department of Personnel and Training
Civil Appeal No. of 2015 & Ors. Page 9 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 10
North Block, New Delhi
Dated the 13th August, 1997
OFFICE MEMORANDUM
SUBJECT: RESERVATION FOR THE SCs/STs IN
PROMOTION
The undersigned is directed to invite
attention to this Department's OM No.
36012/37/93-Esst. (SCT) dated 19.8.1993
clarifying that the Supreme Court had, in the Indira
Sawhney case, permitted the reservation for the
Scheduled Castes and Scheduled Tribes, in
promotion, to continue for a period of five years
from 16.11.1992.
2. Consequent to the Judgment in Indira
Sawhney's case the Constitution was amended by
the Constitution (Seventy seventh Amendment)
Act, 1995 and Article 16(4A) was incorporated in
the Constitution. This article enables the State to
provide for reservation in matters of promotion, in
favour of the Scheduled Castes and the Scheduled
Tribes, which in the opinion of the State are not
adequately represented in the Services under the
State.
3. In pursuance of Article 16(4A), it has been
decided to continue the Reservation in promotion
as at present, for the Scheduled Castes and the
Scheduled Tribes in the services/posts under the
Central Government beyond 15.11.1997 till such
time as the representation of each of the above two
categories in each cadre reaches the prescribed
percentages of reservation whereafter, the
reservation in promotion shall continue to maintain
the representation to the extent of the prescribed
percentages for the respective categories.
4. All Ministries/Department are requested to
urgently bring these instructions to the notice of all
their attached/subordinate offices as also the
Public Sector Undertakings and Statutory Bodies
etc.
Sd/-
(Y.G. PARANDE)
Director (Reservation)”
Civil Appeal No. of 2015 & Ors. Page 10 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 11
Impugned Judgment
13) The respondents Associations representing SC and ST
employees had filed writ petitions in the High Court of Madras
submitting that in spite of there being a clear policy of reservation
even for promotion from one category of officer to the higher
category of officers, the appellant Banks had not been making
any provision for such reservations while carrying out the
promotions. Mandamus was sought seeking directions against
the Bank to specify such reservation to SC/ST officers as per the
promotion policy for officers. The learned Single Judge of the
High Court dismissed the writ petitions holding that Article 16(4A)
was only an enabling provision which permits the State to make
provisions for reservation insofar as promotions are concerned.
However, in the instant case, no such provision was made. No
material was produced by the writ petitioners which could
demonstrate any such specific provision for promotion.
14) The writ petitioners challenged said order by filing writ appeals
before the Division Bench. The Division Bench has taken a
contrary view. A perusal of the judgment of the Division Bench
would spell out that it has gone by the spirit behind Articles 15
and 16 of the Constitution which are in the nature of affirmative
Civil Appeal No. of 2015 & Ors. Page 11 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 12
actions that can be taken by the State in providing reservations
for the socially and educationally backward people and that
includes SC and ST classes. It has pointed out that Article 16(4)
is specifically designed to give a due share in the State power to
those who have remained out of it mainly on account of their
social, educational, economic backwardness as reservation
affords such classes of citizens a golden opportunity to serve the
nation and thus gain security, status, comparative affluence and
influence in decision making process. It was with this spirit in
mind Clause 4A was inserted introducing an enabling provision
for providing reservation in the matter of promotion as well. The
High Court thereafter took note of the statistics that was placed
on record to show the strength of SC/ST officers in various
grades/scales/cadres in respect of UCO Bank as well as Central
Bank of India and found that there was hardly any representation
in the higher scales, what to talk of adequate representation. The
figures given in respect of Central Bank of India are noted in para
22 of the impugned judgment, stating as under:
“22. ......A consolidated statement for the
promotions from the year 1997 to 2008 in MMG:IIIIV:,
SMG: IV-V; SMG V-VI; TMG VI-TMG VII would
depict a bleak picture regarding the entire aspect
since least or no presentation for SC/ST could be
seen glaringly. As per these calculations for the
total promotions of 20 posts, only one SC
candidate got promotion in the year 2007 and for a
Civil Appeal No. of 2015 & Ors. Page 12 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 13
total promotions of 171, within these categories
only nine SC candidates got promotion. In
promotions effected for the years 1997 and 2002,
respectively for 19 posts and six posts, no SC/ST
candidate was offered promotion. In the year 1999,
for a total number of 126 posts, only one SC
candidate was given promotion. Likewise, for a
whopping 308 numbered of promotions in the year
2006 a meager 36 candidates of SC/ST were
promoted.”
The Court also noticed almost identical feature in UCO Bank
giving the following details :
“23. …....As per the scale wise representation
of SC/ST officers as on 31.3.2008 in the UCO
Bank, in Scale IV posts there is a short fall of 50
SC officers and 31 ST officers in Scale V posts,
there is a short fall of 10 SC officers and 7 ST
officers; in Scale VI, there is a short fall of 5 SC
officers and 2 ST officers and in Scale VII posts,
there is a short fall of 3 SC officers and one ST
officer.”
15) Office Memorandum dated 13-08-1997 has been read in the light
of the aforesaid constitutional spirit as well as inadequate
representation of SC/ST category officers in the Banks holding
that the mandate of the said O.M. was to provide for reservation.
16) While holding so, the High Court also repelled the contention of
the Banks predicated on Article 335 of the Constitution on the
basis of which it was contended that introduction of rule of
reservation in promotion would reduce the efficiency of
administration of Banks. The Court specifically took note of
Civil Appeal No. of 2015 & Ors. Page 13 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 14
Constitution Eighty-Second Amendment which was made
effective from 08-09-2000 and provides that nothing in this Article
shall prevent in making any provision in favour of the members of
the Scheduled Castes and Scheduled Tribes for relaxation in
qualifying marks in any examination or lowering the standards of
evaluation, for reservation in matters of promotion to any class or
classes of services or posts in connection with the affairs of the
Union or of a State. In the opinion of the High Court, when
Constitution has given such extra protection to the under
privileged communities so as to enjoy equal opportunities as
guaranteed by the Constitution, the Banks are not justified in
sleeping over the matter providing reservations in promotions for
a decade with no good reasons to offer.
17) The position taken by both the parties remains the same before
us as well. According to the Banks, vide O.M. dated 13-08-1997
“it has been decided to continue the reservation in promotion as
at present, for the Scheduled Castes and the Scheduled Tribes in
the services/posts...........”. It is, thus, argued that this O.M. did not
make any reservation in the matter of promotion but whatever
was existing earlier has been continued. M/s. C.S. Vaidyanathan
and Raju Ramachandran, learned Senior Advocates, who argued
Civil Appeal No. of 2015 & Ors. Page 14 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 15
for these Banks laid strong emphasis on the aforesaid language
employed in the O.M. and submitted that only existing position
continued and the position which was existing was that there was
no specific provision for reservation. The only provision which
existed was judging the candidature of SC/ST candidates for
promotion in Class A (Class I) service drawing more than basic
salary of ₹5,700/-, to apply relaxed standards. It was submitted
that such a provision existed in O.M. dated 01-11-1990. It was
pointed that in para 2 of this O.M. a mention was made about the
concession which was to be given to the officers belonging to
these categories and in para 3 it was amply clarified that there is
no reservation in promotion by selection. Paras 2and 3 of O.M.
dated 01-11-1990 read as under:
“2. Though in the OM 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
and Scheduled Tribes will be given concession
namely “those 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 select list has to be
drawn up, would be included in that list provided
they are not considered unfit for promotion”, doubts
have been expressed in certain quarters as to
whether the concession given herein above is a
reservation or a concession.
3. It is hereby clarified that in promotion by
selection within group A posts which carry an
Civil Appeal No. of 2015 & Ors. Page 15 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 16
ultimate salary of Rs. 5700/- p.m. there is no
reservation.”
18) It was argued that a conjoint reading of the aforesaid two
circulars, namely, O.M. dated 01-11-1990 and 13-08-1997 would
manifest that the provision was made for concession and not
reservation in the matter of promotion. Reliance was placed on
two judgments of this Court where distinction between concession
and reservation is explained lucidly:
(i) National Federation of S.B.I. and Others v. Union of
India and Others4
“15. In 1987, the Government of India issued the
7th Edn. of the said Brochure in which para 9.2,
corresponding to the one quoted above, reads as
follows:
MHA OM No. 1/9/69. Estt.(SCT) dated 26-3-70 and
Deptt. of Personnel & AR OM No. 1/10/74-Estt.
(SCT) dated 23-12-1974
“9.2 Promotion by selection method.— (a)
Promotions by selection within Group A
(Class-I).
In promotions by selection to posts within
Group A (Class I) which carry an ultimate
salary of Rs 2000 per month, or less, (Rs 2250
per month or less in the revised scale) there is
no reservation, but 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 been
drawn up, would be included in that list
provided they are not considered unfit for
4 (1995) 3 SCC 532
Civil Appeal No. of 2015 & Ors. Page 16 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 17
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 I).
(i) Scheduled Castes/Scheduled Tribes
officers in Group A (Class I) 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 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.”
xx xx xx
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 dated 26-3-1970
deals — there are no orders of the Government of
India applying the rule of reservation. We have
referred hereinbefore to the earlier Memorandum
dated 11-7-1968 (which in turn refers to a yet
earlier Memorandum dated 8-11-1963). Those
earlier Memorandums provide for reservation 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 26-3-1970
Civil Appeal No. of 2015 & Ors. Page 17 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 18
provide for such reservation. The idea is selfevident.
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 30-5-1981 and the
subsequent ones do not amend or modify the
Office Memorandum dated 26-3-1970 but merely
explain it. They make explicit what is implicit in it.
So is the rendering of para 9.2 in the 7th Edn. 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 26-3-1970 is provided in that
behalf. It cannot, therefore, be said that either the
letters of the Ministry of Finance or the rendering of
para 9.2 in the 7th Edn. of the Brochure is
inconsistent with the Memorandum dated 26-3-
1970 or that they are contrary to the orders of the
Government.
xx xx xx
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 are entitled to
the concession contained in para 2 of the Office
Memorandum dated 26-3-1970 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 considered unfit for promotion. (This rule
Civil Appeal No. of 2015 & Ors. Page 18 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 19
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
Promotion 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. This is also the purport of para 9 of the
Brochure insofar as it deals with promotions within
Class I.”
(ii) Pragjyotish Gaonlia Bank (Now known as Assam
Gramin Vikash Bank) and Another v. Brijlal Dass5
“24. Having carefully considered the submissions
made on behalf of the respective parties, we are
inclined to agree with Mr Mehta that the provision
relating to reservation posts extracted hereinabove,
contained in the Circular dated 10-6-1997, has
been wrongly interpreted by the Division Bench of
the High Court. The said condition is in the nature
of a concession as was contemplated in the
Circular dated 9-11-1994, issued by NABARD in
order to give an opportunity to a Scheduled Caste
or Scheduled Tribe candidate to be automatically
appointed, if he came within the number of
vacancies available. It was a concession to enable
such a candidate to avoid the process of selection,
which all the other candidates were required to
undergo.
25. The said provision has been very elaborately
explained by a three-Judge Bench of this Court in
National Federation of SBI v. Union of India; (1995)
3 SCC 532 . As has been explained in the said
judgment, the zone of consideration is the list of
selected candidates chosen in order of seniority to
be considered for the purpose of filling up the
available vacancies and merely by coming within
5 (2009) 3 SCC 323
Civil Appeal No. of 2015 & Ors. Page 19 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 20
the zone of consideration a Scheduled Caste or
Scheduled Tribe candidate would not be entitled to
automatic selection. The concession relating to
reservation does not mean that any of the vacant
posts were required to be kept reserved for such
Scheduled Caste or Scheduled Tribe candidate. It
is only when such a candidate came within the
number of vacancies that such a concession would
be applicable to him/her for appointment without
going through the selection process.
19) Learned counsel appearing for respondents, including Dr. Krishan
Singh Chauhan, Mr. E.C. Vidya Sagar, Mr. A. Subba Rao,
Mr.Satyajit A. Desai and Mr. C.K. Chandrasekhar, Advocates,
placed strong reliance on the reasons given by the High Court in
support of its verdict projecting dismal state of affairs virtually no
representation of the SC/ST employees in the officers category,
particularly, scale IV and above.
20) It was also argued by these respondents that after the impugned
judgment of the Division Bench allowing writ appeals of these
respondents, on 14-01-2010 and 01-02-2010, the Union
Government had directed the implementation of the impugned
High Court judgment. The Bank has filed the SLP, thereafter.
Their present stand that there will be no reservation but only
concession by considering officers who are senior enough to be
within the zone and are not declared unfit, is misleading. In fact, a
Bill was passed in both the Houses of the Parliament by the
Civil Appeal No. of 2015 & Ors. Page 20 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 21
previous Government to grant reservations in promotions at all
levels, (i.e. 117th Constitutional Amendment), which had lapsed
subsequently. It was argued that the Union Government cannot
take a different stand now.
21) The claim of the Banks that grant of reservation in promotion from
Scale-I level onwards would affect efficiency, was also refuted by
contending that the officers belonging to SC/ST have been
promoted only on the basis of their own merit/performance. It
was submitted that the State cannot act contrary to Constitutional
provisions. It was submitted that the decision dated 10-03-1995 in
National Federation of S.B.I. (supra) and relied by the Banks
related to pre-77th Amendment, which came to be passed on 17-
06-1995. As per them, the decision in M. Nagaraj (supra)
answers the issues raised by the Banks. Pointed reference was
made to the 117th Amendment Bill, which was taken judicial notice
of in Himachal Pradesh Scheduled Tribes Employees
Federation and another v. Himachal Pradesh Samanaya Varg
Karamchari Kalayan Mahasangh and others6. Attention was
drawn to paras 32 to 34 of the said judgment, which are as under:
“32. Here, we would like to allude to the words of
Lord Denning, in Rondel v. Worsley (1967) 1 QB
443 about the conduct expected of an advocate:
6 (2013) 10 SCC 308
Civil Appeal No. of 2015 & Ors. Page 21 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 22
“… As an advocate he is a minister of justice
equally with the Judge. … I say ‘all he
honourably can’ because his duty is not only to
his client. He has a duty to the court which is
paramount. It is a mistake to suppose that he
is the mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is
none of these things. He owes allegiance to a
higher cause. It is the cause of truth and
justice. He must not consciously misstate the
facts. He must not knowingly conceal the truth.
He must not unjustly make a charge of fraud,
that is, without evidence to support it. He must
produce all the relevant authorities, even those
that are against him. He must see that his
client discloses, if ordered, the relevant
documents, even those that are fatal to his
case. He must disregard the most specific
instructions of his client, if they conflicts with
his duty to the court. The code which requires
a barrister to do all this is not a code of law. It
is the code of honour.” (QB p. 502)
(emphasis supplied)
In our opinion, the aforesaid dicta of Lord Denning
is an apt exposition of the very high standard of
moral, ethical and professional conduct expected to
be maintained by the members of legal profession.
We expect no less of an advocate/counsel in this
country.
33. Here, in this case, on 26-4-2010 a statement
was made on behalf of the State of H.P. that “the
State intends to collect more details with regard to
representation of the SCs/STs and to pass
appropriate orders within a reasonable time i.e.
approximately within three months after collecting
the necessary details and datas”. Having very
deftly avoided a decision on merits in SLP (C) No.
30143 of 2009, the State has totally failed to live up
to the solemn statement made to this Court. It has
hedged and hemmed and prevaricated from 26-4-
2010 till date. In spite of the requisite data being
available, the policy of reservation already adopted
by the State has not been implemented. We,
therefore, do not agree with Dr Dhavan that the
Civil Appeal No. of 2015 & Ors. Page 22 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 23
applicants are seeking a mandamus to adopt a
policy in reservation. From the above narration, it is
evident that the applicants want the State to
implement its own decisions. The prayer is:
“Direct the respondent/State Government to
decide the case in time-bound manner on the
basis of data already available/submitted to
the Cabinet Sub-Committee on 25-4-2011
within a period of one month and;
Further direct stay on all promotions pending
decision taken in this case.”
34. The final excuse offered by the State for not
granting the aforesaid relief is that the State now
awaits the finalisation of the 117th Constitution
Amendment. We decline to accept the reasons put
forward for not honouring the statement solemnly
made to this Court on 26-4-2010. This Court has
been more than considerate to the requests made
by the State for extension of time. This last excuse
about awaiting the finalisation of the proposed
Hundred-seventeenth Constitutional Amendment is
the proverbial last straw on the camel’s back. As
stated earlier, the proposed 117th Constitutional
Amendment would not adversely affect the merits
of the clam (sic) of the petitioner for grant of
promotion with consequential seniority. By the
aforesaid proposed Amendment, the existing Article
16 clause (4-A) is to be substituted by the following
clause (4-A)—
“16. (4-A) Notwithstanding anything contained
elsewhere in the Constitution, the Scheduled
Castes and the Scheduled Tribes notified
under Article 341 and Article 342, respectively,
shall be deemed to be backward and nothing
in this article or in Article 335 shall prevent the
State from making any provision for
reservation in matters of promotions, with
consequential seniority, to any class or classes
of posts in the services under the State in
favour of the Scheduled Castes and the
Scheduled Tribes to the extent of the
percentage of reservation provided to the
Scheduled Castes and the Scheduled Tribes
in the services of the State.”
Civil Appeal No. of 2015 & Ors. Page 23 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 24
22) Much reliance was also placed on a recent decision of this Court
in the case Rohtas Bhankhar and Others v. Union of India and
Another7, on the basis of which it was contended that the reliance
of the Banks in that case on O.M. dated 22.07.1997 was totally
misplaced as, inasmuch as, in this case the said O.M. is held to
be bad in law as per the discussion contained in the following
paragraphs:
“9. We are in respectful agreement with the
decision in UT, Chandigarh v. Kuldeep Singh,
(1997) 9 SCC 199 and approve the same.
Ordinarily, we would have sent the matter to the
regular Bench for disposal of the matters but
having regard to the nature of controversy and the
fact that the Central Administrative Tribunal, Delhi
(for short “the Tribunal”) has followed S. Vinod
Kumar v. Union of India, (1996) 6 SCC 580 which is
not good law and resultantly the 1997 OM is also
illegal, in our view, the agony of the appellants
need not be prolonged as they are entitled to the
reliefs.
10. Consequently, the civil appeals are allowed.
The impugned order is set aside. The 1997 OM is
declared illegal. The respondents are directed to
modify the results in the Section Officers/
Stenographers (Grade B/Grade I) Limited
Departmental Competitive Examination, 1996 by
providing for reservation and extend all
consequential reliefs to the appellants, if not
granted so far. No costs.”
23) Before discussing the main issue involved, it would be in the
fitness of things to iron out some of the creases surrounding the
7 (2014) 8 SCC 872
Civil Appeal No. of 2015 & Ors. Page 24 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 25
main issue. In fact, this exercise would facilitate understanding
the precise tenor of the issue that needs to be addressed and
answered.
24) In the first instance, we make it clear that there is no dispute
about the constitutional position envisaged in Articles 15 and 16,
insofar as these provisions empower the State to take affirmative
action in favour of SC/ST category persons by making
reservations for them in the employment in the Union or the State
(or for that matter, public sector/authorities which are treated as
State under Article 12 of the Constitution). The laudable objective
underlying these provisions is also to be kept in mind while
undertaking any exercise pertaining to the issues touching upon
the reservation of such SC/ST employees. Further, such a
reservation can not only be made at the entry level but is
permissible in the matters of promotions as wells. At the same
time, it is also to be borne in mind that Clauses 4 and 4A of Article
16 of the Constitution are only the enabling provisions which
permit the State to make provision for reservation of these
category of persons. Insofar as making of provisions for
reservation in matters of promotion to any class or classes of post
is concerned, such a provision can be made in favour of SC/ST
Civil Appeal No. of 2015 & Ors. Page 25 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 26
category employees if, in the opinion of the State, they are not
adequately represented in services under the State. Thus, no
doubt, power lies with the State to make a provision, but, at the
same time, courts cannot issue any mandamus to the State to
necessarily make such a provision. It is for the State to act, in a
given situation, and to take such an affirmative action. Of course,
whenever there exists such a provision for reservation in the
matters of recruitment or the promotion, it would bestow an
enforceable right in favour of persons belonging to SC/ST
category and on failure on the part of any authority to reserve the
posts, while making selections/promotions, the beneficiaries of
these provisions can approach the Court to get their rights
enforced. What is to be highlighted is that existence of provision
for reservation in the matter of selection or promotion, as the case
may be, is the sine qua non for seeking mandamus as it is only
when such a provision is made by the State, a right shall accrue
in favour of SC/ST candidates and not otherwise.
25) It is not in dispute that the rule of reservation is followed for
promotions from clerical grade to the lowest rank in the officer
grade. The question, however, is as to whether there is any
provision for reservation when promotion from a particular rank in
the officer grade is to be made to the next rank in the said grade,
Civil Appeal No. of 2015 & Ors. Page 26 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 27
namely, from Scale-I to Scale-II, Scale-II to Scale-III and so on.
26) While considering this question, we have to keep in mind that
reservation policy of the Central Government is applicable to the
appellant Banks. It is the common case of both the parties. In
fact, as already noted above, there is a specific provision to this
effect in the promotion policies framed by the appellant Banks.
27) Next thing which is to be kept in mind is the two office
memoranda, one dated 1.11.1990 and the other dated 13.8.1997,
which are referred to by the counsel for the parties. We have
already reproduced the aforesaid two office memoranda. Insofar
as, Office Memorandum dated 1.11.1990 is concerned, a bare
reading of this provision would reflect the following two aspects:
(a) In promotion by selection within Class-I (Group-A) post, the
SC/ST candidates are to be given 'concession'.
(b) This concession is available to those SC/ST employees 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
drawn up.
Thus, first requirement is that such SC/ST candidates who come
within the zone of consideration for promotion are senior enough
to be within the number of vacancies. Once they come within the
Civil Appeal No. of 2015 & Ors. Page 27 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 28
aforesaid zone of consideration, they have to be included in the
list, provided they are not considered unfit for promotion. It clearly
follows from the above that once they come under the zone of
consideration for promotion so as to be within the number of
vacancies for which select list has to be drawn up, for such SC/ST
employees the only embargo to deprive them of promotion is
when they are found unfit for promotion. For other officers in
general category, depending upon the rule of promotion, there
may be much stricter criteria based on comparative merit or
selection by merit, etc. However, in case of such senior enough
SC/ST candidates, the criteria appears to be seniority, subject to
fitness.
(c) This OM specifically clears the doubt that the aforesaid
provision is only a concession and not reservation in favour of
SC/ST candidates, inasmuch as para 3 of the OM states that “It is
hereby clarified that in promotion by selection within Group-A
post, which carry ultimate salary of ₹ 5,700/- per month, there is
no reservation”. It is clear from the above that insofar as Office
Memorandum dated 1.11.1990 is concerned, there was no
provision for reservation made in favour of SC/ST candidates in
promotion by selection within Group-A posts carrying an ultimate
salary of ₹5,700 per month.
Civil Appeal No. of 2015 & Ors. Page 28 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 29
28) No doubt, this Office Memorandum was issued in the year 1990,
that is much before amendment in Article 16 of the Constitution,
which was carried out in the year 1995 by inserting Clause 4A.
However, as already pointed out above, Clause 4A is an enabling
provision which empowers the State to make reservations in the
matter of promotions as well as in favour of SC/ST employees.
There was no such provision till 1.11.1990 in the matter of
promotion by selection within Group-A post which carry an
ultimate salary of ₹5,700/- per month.
29) Having understood this, we come to Office Memoradum dated
13.8.1997 to find out as to whether this Memorandum makes any
provision for reservations in the matter of promotion in favour of
SC/ST employees, inasmuch as no other Office Memorandum or
Circular or Rule, etc. is produced on record for this purpose.
30) We have already noted above that a nine Judge Bench decision
of this Court in Indra Sawhney (supra) held that Clause 4 of
Article 16 does not cover the cases of promotion, meaning
thereby, as per the said clause no reservation in favour of SC/ST
persons in the matter of promotions is permissible. It is to nullify
the effect of this dicta in the said judgment that Clause 4A was
Civil Appeal No. of 2015 & Ors. Page 29 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 30
inserted in Article 16 by Constitution's Seventy-Seventh
Amendment with effect from 17-06-1995. However, it is also a
matter of record that in Indra Sawhney's case (supra), this Court
had also clarified that reservation for SC/STs in promotion would
continue for a period of five years from 16-11-1992. What it
meant was that if there is a provision of reservation made in the
matter of promotions, notwithstanding the dicta in the said case
that such a reservation is not permissible, those provisions were
allowed to continue for a period of five years from 16-11-1992.
Thereafter, before the expiry of five years, constitutional provision
was incorporated in the form of Clause 4A by making provision for
reservation in the matter of promotions as well. These facts are
taken note of in first two paras of Office Memorandum dated 13-
08-1997. Thereafter, in the 3rd para of the said Memorandum, it is
provided:
“3. In pursuance of Article 16(4A), it has been
decided to continue the Reservation in promotion
as at present, for the Scheduled Castes and the
Scheduled Tribes in the services/posts under the
Central Government beyond 15.11.1997 till such
time as the representation of each of the above two
categories in each cadre reaches the prescribed
percentages of reservation whereafter, the
reservation in promotion shall continue to maintain
the representation to the extent of the prescribed
percentages for the respective categories.”
Civil Appeal No. of 2015 & Ors. Page 30 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 31
31) What is decided is to continue the reservation in promotion, which
was prevalent at that time, for the SC/ST employees, which was
to continue in terms of the judgment of this Court in Indra
Sawhney (supra) till 15-11-1997, even beyond 15-11-1997, till
such time as the representation of each of the above two
categories in each cadre reaches the prescribed percentages of
reservation whereof. It is, thus, crystal clear from a bare reading
of this para that the existing provision relating to reservation in
promotion was allowed to continue beyond 15-11-1997. Thus,
this Memorandum did not make any new provision for reservation
in promotion in favour of SC/ST employees.
32) We have already noticed above that in matters of promotion
within Group-A posts, which carry an ultimate salary of ₹5,700/-
per month, there was no provision for any reservation. On a
conjoint reading of these two Office Memorandums, in the
absence of any other provision or Rule evidencing such a
reservation in the matter of promotions, it cannot be said that
there was reservation in promotion within Group-A posts upto the
ultimate salary of 5,700/- per month. ₹ The High Court in the
impugned judgment has gone by the lofty ideals enshrined in
Articles 15 and 16 of the Constitution as well as the fact that in
these Banks there is no adequate representation of SC/ST
Civil Appeal No. of 2015 & Ors. Page 31 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 32
category of officers in Group-IV and above. That may be so. It
can only provide justification for making a provision of this nature.
However, in the absence of such a provision, same cannot be
read by overstretching the language of Office Memorandum dated
13-08-1997. It is for the State to take stock of the ground realities
and take a decision as to whether it is necessary to make
provision for reservation in promotions to the aforesaid post as
well.
33) Having said so, one other aspect which has to be necessarily
addressed to at this stage calls for our attention. This aspect,
which we are going to point out now, has been totally glossed
over by the learned Single Judge as well as the Division Bench of
the High Court in their respective judgments.
34) It is provided in Office Memorandum dated 01-11-1970, and we
have repeatedly stated above, that there is no reservation in
promotion by selection within only those Group-A posts which
carry an ultimate salary of ₹5,700/- per month. In such cases, it
is only concession that applies. We have accepted the contention
of the appellant Banks in this behalf, as per the discussion
contained hereinabove. Significantly, what follows is that
reservation is provided in promotion by selection qua those posts
Civil Appeal No. of 2015 & Ors. Page 32 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 33
which carry an ultimate salary of less than ₹5,700/- per month
(pre-revised).
35) The Department of Public Enterprises had issued an Office
Memorandum dated 08-11-2004 as to the salary limit of ₹5,700/-
mentioned for the purposes of reservation as ₹18,300/- (5th
Central Pay Commission) and in the case of Public Sector
Undertakings who are following Industrial Dearness Allowance
(IDA) pattern, the monetary ceiling was fixed as ₹20,800/- (from
01-01-1996, i.e. 5th Central Pay Commission). The said pay
ceiling is achieved in the appellant Banks only when an officer
reaches Scale-VII. As a fortiorari, the policy of no reservation in
the matter of promotion is applicable only from Scale-VII and
above. It, therefore, clearly follows that insofar as promotion from
Scale-I to Scale-II, Scale-II to Scale-III, Scale-III to Scale-IV,
Scale-IV to Scale-V, Scale-V to Scale-VI are concerned,
reservation is to be provided. The appellant Banks, therefore,
cannot take umbrage under the aforesaid Memorandum and deny
reservation in favour of SC/ST employees while carrying out
promotions upto to Scale-VI.
Civil Appeal No. of 2015 & Ors. Page 33 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 34
36) Upshot of the aforesaid discussion would be to allow these
appeals partly. While setting aside the impugned judgment of the
High Court to the extent it holds that Office Memorandum dated
13-08-1997 makes a provision for reservation, it is clarified that at
present there is no provision for reservation in promotion by
selection only in respect of those posts which carry an ultimate
salary of 5,700/- per ₹ month (revised to ₹18,300/- by 5th Central
Pay Commission and ₹20,800/- per month in respect of those
Public Sector Undertakings following IDA pattern). Qua appellant
Banks, that would be in respect of Scale-VII and above.
Therefore, to carry out promotions from Scale-I upwards upto
Scale-VI, reservation in promotion in favour of SC/ST employees
has to be given. It would have the effect of allowing the writ
petitions filed by the respondents/unions partly with directions to
the appellant Banks to make provision for reservations while
carrying out promotions from Scale-I to to Scale-II and upward
upto Scale-VI.
37) In view of the above, Contempt Petition (Civil) No. 320 of 2010 is
disposed of with directions to the appellant Banks to carry out the
promotions by adopting the procedure mentioned in this
judgment.
Civil Appeal No. of 2015 & Ors. Page 34 of 36
(arising out of SLP (C) No. 4385 of 2010 & Ors.)
Page 35
38) In the peculiar facts of this case, we leave the parties to bear their
own costs.
.............................................J.
(J. CHELAMESWAR)
.............................................J.
(A.K. SIKRI)
NEW DELHI;
JANUARY 09, 2015.
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