SUPREME COURT OF INDIA
Ramrao
Vs
All India Backward Class Bank Employees Welfare Association
Civil Appeal Nos. 4593-4594 of 2002 (with C.A. Nos. 4595-96 and 4597 of 2002)
(S. B. Sinha and Arun Kumar)
JUDGMENT
S.B. SINHA, J.
1. Civil Appeal Nos. 4593-4594 of 2002 and 4595-4596 of 2002 have been filed by
the appellants thereof (hereinafter referred to as "Promotees") upon
obtaining permission to file the Special Leave applications against the
judgment and order dated 10.8.2001 passed by the High Court of Judicature at
Bombay Bench at Aurangabad in Writ Petition No. 255/1990. Writ Petition No.
1551/1990 has been filed by All India Backward Class Bank Employees Welfare
Association (hereinafter referred to as "Association") which is the
respondent No.1 in the aforementioned appeals and the appellant in Civil Appeal
No. 4597/2002.
FACTS:
2. The Promotees are employees of Marathwada Gramin Bank (hereinafter referred
to as "Bank").
3. A circular bearing No. Ho/ST/Cir No. 3588 (159) dated 8.11.1988 was issued
by the Respondent Bank notifying the eligibility criteria for internal
promotion to the posts of Officers and Field Supervisors. The Board of
Directors of the Bank passed a resolution dated 10.11.1989 approving the
proposal to fill in 23 posts of Officers and 45 posts of Field Supervisors by
promotion fixing the cut off date for eligibility therefor as on 31.8.1989. The
promotions were to be made on application of the principle of
seniority-cum-merit. Out of 45 posts of Field Supervisors, 13 including the
backlog were proposed to be reserved for Scheduled Tribe Category. On or about
27.11.1989 the Respondent Bank issued another circular bearing No. HO/ST/Gr No.
43/89 notifying the vacancies.
4. Writ Petition No. 255/1990 was filed by the Respondent No.1 herein
questioning the cut off date of 31.8.1989 fixed by the Bank for deciding the
eligibility of its employees for promotion to the posts of Field Supervisors
and Officers.
5. On 2.2.1990, the High Court passed an interim order in the said Writ
Petition in the following terms:
"Notice before admission returnable within four weeks. Interim in terms
of prayer clause (c) in the meanwhile" *.
6. Thereafter the said interim order dated 2.2.1990 was modified by the High
Court in terms of an order dated 9.4.1990 directing that the appointment made
shall be subject to the result of the writ petition.
7. In the meantime, interview of eligible candidates was held between 10.2.1990
to 15.2.1990.
8. It is contended that no eligible Scheduled Tribe candidate was available for
promotion in the vacancies reserved for Scheduled Tribe category in the Post of
Field Supervisor as on the cut off date of 31.8.1989 or even thereafter
including for filling up the backlog and, thus, the Board of Directors passed a
resolution on or about 17.4.1990 for dereserving the vacancies which were
reserved for Scheduled Tribe candidates. The said proposal was also forwarded
to the Ministry of Finance, Government of India as well as to the Sponsor Bank
and NABARD for requisite permission stating that there was no eligible
Scheduled Tribe candidate for appointment on the said 13 reserved posts.
9. The Ministry of Finance, Government of India approved the proposal for
dereservation of 13 vacancies which were earlier reserved for the Scheduled
Tribe candidates. NABARD also granted its permission for dereservation of said
13 vacancies.
10. The contention of the appellants is that by reason of such dereservation
the said vacancies became available for being filled up by the candidates
belonging to the general category. During pendency of the aforementioned writ
petition, interview was held in between 10.2.1990 and 15.2.1990. The
Association filed the writ petition marked as W.P. 255 of 1990, as noticed
hereinbefore, only questioning the cut off data. Another writ petition was
filed by one Shri Ashok which was marked as writ petition No. 1551 of 1990
questioning the cut off date as also the order of promotion. However, in both
the writ petitions, neither the promotees nor the Union of India or NABARD were
impleaded as parties. In the said writ petitions the order of dereservation was
also not questioned.
HIGH COURT JUDGMENT:
11. By reason of the impugned judgment, a Division Bench of the High Court held
that the cut off date fixed by the respondent Bank was valid. It further held
that the Bank did not have any questionable motive if fixing the said cut off
date and the explanation given by it being a plausible one could not be
rejected. The contention raised by the Association to the effect that the said
circular dated 8.11.1988 was issuing for the purpose of frustrating the
reservation policy did not find favour with the High Court, as upon a perusal
of the select panel it became explicit that the candidates from the SC
categories had been appointed. The High Court further observed that even if in
place and stead of 31.12.1989 being the cut off date the same was to be taken
as 31.3.1990, nothing had been brought on records to show that any Scheduled
Tribe candidate would have become eligible.
12. The High Court further opined that the Scheduled Tribe candidates having
been appointed sometimes in the year 1994 onwards, the requirements of six
years service as set out in the rules could not have been waived by the Bank by
its impugned resolution. It, however, came to the conclusion that reservation
policy being in issue in the said writ petition, the challenges raised therein
should not limit the scope thereof. Keeping in view the subsequent action taken
by the Bank including the issue of dereservation and appointment of open
category candidates to the respective posts pursuant to the decision of
dereservation, the High Court proceeded to analyse the requirements for
notifying dereservation as contained in the Brochure and held that the Bank did
not follow the requisite procedure to undertake a fresh survey regarding the
availability of the eligible candidates from the respective categories even
though such candidates were not available on the cut off date. It was observed:
"We, therefore, direct the bank to examine the availability of
candidates belonging to ST category for promotion to the post of Field
Supervisor and Officer who became eligible from 18.4.1990 to 17.4.1991 as well
as during the next two years i.e. up to 17.4.1993 thereby making a period of 3
years for filling in the backlog of such reserved category candidates, by
examining the caste claims of all such candidates including their service
record so as to fulfil the principle of seniority-cum-merit. This shall be done
within a period of two months from today and those scheduled tribe category
candidates who are found to be eligible, shall be given promotion to the post
of Field Supervisor and/ or officer, as the case may be, and the open category candidates
who have been appointed against such posts shall vacate these posts forthwith.
We clarify that while withdrawing the appointments made in favour of the open
category candidates against reserved posts, the candidates who joined last
would go first and the bank shall not be entitled to recover any amount from
them as they have already worked in the higher posts. Their pay fixation in the
lower posts shall be done as per the rules. The reserved category candidates,
who shall be so promoted, shall not be entitled to claim arrears in salary, but
for the purpose of seniority in the respective grades, the date of promotion
shall be counted. *
13. Promotees have filed appeals upon obtaining leave of this Court questioning
the directions issued by the High Court. Association's appeal is against that
part of the judgment wherein 'cut off' date fixed by the Bank has been found to
be valid.
SUBMISSIONS:
14. The learned counsel appearing on behalf of the Promotees contended that the
High Court committed a manifest error in passing the impugned judgment as in
the writ petitions neither they were impleaded as parties nor the order of
dereservation was in question.
15. Besides, supporting the impugned judgment, the contention of the
Association, on the other hand, is that keeping in view the fact that 29
vacancies are existing in the Bank as the concerned employees have either
resigned, dismissed or died, the appellants as also the Scheduled Tribe
Candidates can be accommodated against the said post. It was urged that
although the Association itself did not question the order of promotion, the
same was done by Ashok in his writ petition and, thus, the High Court cannot be
said to have committed an error in passing the impugned judgment. Furthermore,
13 other writ petitions were filed by other employees of the Bank questioning
the appointment of the appellants herein which had also been disposed of
relying on or on the basis of the impugned judgment.
16. It was argued that the Bank was not correct in raising the contention
before the High Court that no eligible Scheduled Tribe candidate was available
for promotion to the posts of officers as on 31st December, 1985 as two persons
names of whom appeared at Sl. Nos. 67 and 87 of the Seniority List were members
of Scheduled Tribe. It has been contended that a on today as many as 13
Scheduled Tribe candidates are available for promotion to the post of Officer
and, thus, this Court may direct the respondent Bank to adjust the appellants
as also the Scheduled Tribe candidates against the existing vacancies. Mr.
Ganpule, would further submit that the cut-off date fixed by the Bank was
arbitrary and, therefore, the same was liable to be declared as such by the
High Court.
17. The learned counsel appearing on behalf of the Bank, however, has drawn our
attention to the counter affidavit filed in Civil Appeal No. 4597 of 2002
wherein inter alia it has been averred:
"(iv) That the document at the Serial No. 5 (under the heading
"Extract of Seniority List as on 31.12.1985") of the additional
documents sought to be brought on record by the petitioners is also grossly
misleading as it suppresses the material fact known to the petitioners that
against the names of persons at Serial No. 52 of 67 the said list erroneously
mentioned 'ST' which errow was subsequently corrected after due notice to the
concerned persons Shri Pendalwar Shivaji Ramanna and Shri Tehra Kiransinh
Gangusingh. Accordingly, these persons were called for the interview for
promotion in the year 1990 as General Category candidates". *
18. It was urged that all the requisite procedures for dereservation had been
complied with and in that view of the matter the High Court committed a
manifest error in passing the impugned judgment.
19. The learned counsel would further submit that keeping in view the present
policy decision of the Bank, it is not possible to make any further appointment
adjusting the 'Promotees' and the eligible members of the Association and in
this behalf our attention has been drawn to the following statements made in
paragraph 3 of the counter affidavit:
"3(i) In the instant Special Leave Petition it is erroneously pleaded
that the ST category employees can be considered for promotions to cadre of
officers without disturbing status of the petitioner as there are vacancies in
the officer's cadre. In this regard, it is respectfully submitted that
although, it is true that due to one or the other reasons certain officers
ceased to work with the respondent bank, but according to the Man Power Norms in
Regional Rural Banks' introduced by the Government of India, Ministry of
Finance, Department of Economic Affairs (Banking Division), New Delhi, vide its
Order Memorandum, F.No. 3/(24)/99 RRB dated 22.1.2001 and adopted by the Board
of Directors of the respondent Bank, in the meeting dated 18.5.2001, there is
no shortfall in manpower in the officer grade, of the respondent Bank and, on
the category, there exists an excess manpower in the said grade. *
ii) It further needs to be kindly considered by your Lordships that the
accumulated losses of the respondent bank are to the tune of Rs. 53.47 cores as
on 31.3.2001. In view of the implementation of manpower planning norms and in
view of the accumulated losses of the respondent Bank, it is not possible for the
respondent Bank to add manpower in officer cadre, without getting the
corresponding number of posts vacated, inter alia, by reversion of the
petitioner." *
GRANT OF PROMOTIONS:
20. The respondent Bank is a Regional Rural Bank established under the Regional Rural Banks Act, 1976 of which the Bank of
Maharashtra is the sponsor Bank. It appears that in terms of an award issued by
the National Industrial Tribunal in 1991 which was given retrospective effect
from 1.8.1987, 23 vacancies in officers cadre (Junior Management-I) and 45
vacancies in Field Supervisors cadre (which have since been merged in the
officers' cadre) were identified for being filled in by internal promotion from
amongst the eligible Field Supervisors and clerks working in the Bank. It is also
not in dispute that promotion to the said posts are governed under the Regional
Rural Banks (Appointment & Promotion of Officers and other Employees) Rules
1981 (The Rules).
21. It is furthermore not in dispute that for the purpose of effecting promotions
to the post of Field Supervisor or Officer, the following conditions laid down
in the Rules were required to be taken into consideration:
"5(b)(ii) For Promotion:
Confirmed Senior Clerk-cum-Cashier with minimum of four years service as Senior
Clerk-cum-Cashier.
OR
(b) Six years service either as confirmed Junior Clerk-cum-Cashier or Junior
Clerk-cum-Typist or Stenographer or Steno Typist or as a confirmed Senior or
Junior Clerk-cum-Cashier, a the case may be. For the first six years after the
year Bank, post of Field Supervisor will be filled only by direct recruitment
and the promotion quota of these posts will be notionally carried forward and
made good by promotions in the subsequent years. From the year in which the
back log, if any, in the promotion quota is wiped out, the stipulated quota of
fifty percent recruitment from the open market and fifty percent by promotion
will be adhered to. *
6(b)(ii) For Promotions:
Confirmed Field Supervisor with a minimum of five years service as Field Supervisor.
The above condition of minimum service is relaxable as stated below:
(i) Regional Rural Banks which have not completed three years of existence
after their year of establishment will fill up all vacancies in the officer
cadre only by direct recruitment.
(ii) Regional rural banks which have completed three years of existence after
the year of their establishment but have not completed five years, may, but
only with prior approval or National Bank, consider for promotion confirmed
Field Supervisors having a minimum of three years experience in that capacity.
However, if even after this relaxation suitable candidates are not available,
the vacancies to be filed by direct recruitment and the vacancies so filled
will be notionally carried forward to the subsequent years till the back log,
if any, is cleared. Thereafter, the stipulated quota of fifty per cent from
open market and fifty per cent by promotion will be adhered to". *
22. The candidates eligible for promotion were subjected to an interview by the
Selection Committee constituted in terms of Rule 10(1)(b) of the Rules pursuant
whereto and in furtherance whereof the appointments in questions were made.
DERESERVATION:
23. It appears that the respondent Bank initially reserved 8 posts of 'officers'
for the Scheduled Tribe Candidates and 13 thereof for the posts of
'Supervisors'. Chapter VII of the brochure admittedly laid down the procedure
for dereservation. Clause 7.6 provides for carry forward of reservations
whereas Clause 7.7 deals with exchange of reservation between SC/ST and
vice-versa. Clause 7.9 provides for reservation and carry forwarding of a
single vacancy reserved for scheduled caste or scheduled tribe candidates which
may be filled up by a general candidate, as the case may be.
24. As regard difficulty in carrying out the policy of reservation it appears
that the Central Government by a letter dated 19th September, 1989 advised the
respondent Bank to approach the Sponsors Bank for guidance and only in the
event a specific issue arises, a reference was required to be made to the
Government through the Sponsor Bank. The Bank of Maharashtra admittedly having
been approached to give approval for the proposal of dereservation by the
respondent Bank having regard to non-availability of any Scheduled Tribe
candidate for promotion by a letter dated 18th August, 1990 granted such
permission and forwarded the proposal for final approval of the Government of
India. The NABARD also granted approval to the proposal of dereservation by its
letter dated 31st August, 1990. As indicated hereinbefore, the Central
Government had also approved the same.
AFFECT OF ABSENCE OF DERESERVATION AS AN ISSUE:
25. Order of dereservation was admittedly not in issue before the High
Court. In the aforementioned fact situation, we are of the opinion that the
High Court in absence of any specific challenge to the dereservation policy
adopted by the Bank could not have gone into the said question. It is true that
the High Court is entitled to take into consideration the subsequent events,
but the same can only be a relevant factor for the purpose of moulding the
reliefs. But while moulding such reliefs, the High Court could neither have
considered granted of a relief wherefor no factual foundation existed was laid
in the pleadings of the parties.#
26. It has been accepted at the Bar that no factual foundation was laid down in
the writ petition before the High Court as to whether the Bank complied the
requirement of Clause 7.7 of the procedure providing for exchange of reservation
between SC/ST and vice-versa. The question as to whether any eligible scheduled
caste candidate was available for promotion to the post of Officer or not is
essentially a question of fact. It was, thus, not open to the High Court to
advert to the said question.
EFFECT OF ABSENCE OF THE APPELLANTS AS PARTIES:
27. It is true that the order of promotion was in question in Writ Petition No.
1551 of 1990 at the instance of one Ashok but even in the said writ petition the
Promotees were not impleaded as parties. As in the case of the Association,
even in the writ petition filed by Ashok, the order of dereservation passed by
the Union of India or NABARD or the Sponsor Bank had not been questioned.
Admittedly, Union of India or NABARD were not parties in the said writ
petitions. An order issued against a person without impleading him as a
party and, thus, without giving him an opportunity of hearing must be held to
be bad in law. The appellants herein, keeping in view the fact that by reason
of the impugned direction the orders of promotion effected in their favour had
been directed to be withdrawn indisputably were necessary parties. In their
absence, therefore, the writ petition could not have been effectively adjudicated
upon. In absence of the 'Promotees' as parties, therefore, it was not
permissible for the High Court to issue the directions by reason of the
impugned judgment. #
ANALYSIS:
28. It is not the contention of the Association that procedures for effecting promotion
had not been followed. The promotees were, admittedly eligible for promotion
and they had, thus, legally been promoted. The only question which was raised
related to compliance on the part of the Bank as regard the procedure of
dereservation. The High Court, therefore, was required to consider the said
question only in the event, the factual foundation therefor had been laid down
in the writ petition. The Association did not file even any supplementary
affidavit or an application for amendment of the writ petition praying for a
relief as regard quashing of the order of dereservation or bringing the
appellants herein as parties thereto in the writ petition. In absence of any
challenge to the order of dereservation and in absence of the Promotees having
been impleaded as parties, the impugned directions could not have been issued
by the High Court, more so when the appellants herein had not been given an
opportunity of being heard. Once dereservation is made, the vacancies became
available for being filled up by general category candidates and, thus,
therefor the respondent Bank was not required to reexamine the question of
availability of the Scheduled Tribe candidates for appointment on dereserved
vacancies. The view taken by the High Court that even after dereservation
was made, the Bank was required to reexamine the availability of ST candidates
on the dereserved vacancies, was, therefore, not correct particularly when the
High Court itself found that the cut off date being 31.8.1989 was correctly fixed
by the Bank.#
CUT OFF DATE:
29. It is now well-settled that for the purpose of effecting promotion, the
employer is required to fix a date for the purpose of effecting promotion and,
thus, unless cut off date so fixed in held to be arbitrary or unreasonable, the
same cannot be set aside as offending Article 14 of the Constitution of India.
In the instant case, the cut off date so fixed having regard to the directions
contained by the National Industrial Tribunal which had been given a
retrospective effect cannot be said to be arbitrary, irrational, whimsical or
capricious. #
30. The learned counsel could not point out as to how the said date can be said
to be arbitrary and, thus, violative of Article 14 of the Constitution of
India.
31. It is not in dispute that a cut-off date can be provided in terms of the
provisions of the statute or executive order. In University Grants Commission
vs. Sadhana Chaudhary & others, 1). It has been observed:
"21. It is settled law that the choice of a date as a basis for
classification cannot always be dubbed as arbitrary even if no particular
reason is forthcoming for the choice unless it is shown to be capricious or
whimsical in the circumstances. When it is seen that a line or a point there
must be and there is no mathematical or logical way of fixing it precisely, the
decision of the legislature or its delegate must be accepted unless it can be
said that it is very wide off the reasonable mark (See: Union of India vs.
Parameswaran Match Works : (1975) 2 SC"R 573 at p.579 and Sushma
Sharma (Dr) vs. State of Rajasthan:) at p. 269).
32. If a cut-off date can be fixed, indisputably those who fall within the
purview thereof would from a separate class. Such a classification has a
reasonable nexus with the object which the decision of the Bank to promote its
employee seeks to achieve. Such classifications would neither fall within the
category of creating a class within a class or an artificial classification so
as to offend Article 14 of the Constitution of India.
33. Whenever such a cut-off date is fixed, a question may arise as to why a
person would suffer only because he comes within the wrong side of the cut-off
date but, the fact that some persons or a section of society would face
hardship, by itself cannot be a ground for holding that the cut-off date so
fixed is ultra vires Article 14 of the Constitution. #
34. In State of W.B. vs. Monotosh Roy and Another 5), it was held:-
"13. In All India Reserve Bank Retired Officers' Association vs. Union
of India, 1992 Supp (1) SCC 664: 1992 SCC (L & S ) 517: (1992) 19 ATC 856 a
Bench of this Court distinguished the judgment in Nakara, (1983) 1 SCC 305 :
1983 SCC (L & S) 145 and pointed out that it is for the Government to fix a
cut-off date in the case of introducing a new pension scheme. The Court
negatived the claim of the persons who had retired prior to the cut-off date
and had collected their retiral benefits from the employer. A similar view was
taken in Union of India vs. P.N. Menon, (1994) 4 SCC 68: 1994 SCC (L & S)
860 : (1994) 27 ATC 515. In State of Rajasthan vs. Amrit Lal Gandhi (1997) 2
SCC 342: 1997 SC (L & S) 512: the ruling in P.N. Menon case (supra)
was followed and it was reiterated that in matters of revising the pensionary
benefits and even in respect of revision of scales of pay, a cut-off date on
some rational or reasonable basis has to be fixed for extending the benefits. *
14. In State of U.P. vs. Jogendra Singh (1998) 1 SCC 449: 1998 SCC (L &
S) 300 a Division Bench of this Court held that liberalized provisions
introduced after an employees' retirement with regard to retiral benefits
cannot be availed of by such an employee. In that case the employee retired
voluntarily on 12.4.1976. Later on, the statutory rules were amended by
Notification dated 18.11.1976 granting benefit of additional qualifying service
in case of voluntarily retirement. The Court held that the employee was not
entitled to get the benefit of the liberalized provision which came into
existence after his retirement. A similar ruling was rendered in V. Kasturi vs.
Managing Director, State of Bank of India, (1998) 8 SCC 30: 1998 (7) JT
147.
15. The present case will be governed sequarely by the last two rulings
referred to above. We have no doubt whatever that the first respondent is not
entitled to the relief prayed for by him in the writ petition."*
35. In Vice Chairman & Managing Director, A.P.S.I.D.C. Ltd. and Anr. vs. R.
Varaprasad & others (2003(4) Supreme 245) in relation to 'cut off' date
fixed for the purpose of implementation of Voluntary Retirement Scheme, it was
said:
".. The employee may continue in service in the interregnum by virtue
of clause (i) but that cannot alter the date on which the benefits that were
due to an employee under the VRS to be calculated. Clause (c) itself indicates
that any increase in salary after the cut off point/date cannot be taken into
consideration for the purpose of calculation of payments to which an employee
is entitled under the VRS." *
36. The High Court in its impugned judgment has arrived at a finding of fact
that the Association had failed to prove any malice on the part of the
authorities of the Bank in fixing the cut off date. A plea of malice as is
well-known must be specifically pleaded and proved. Even such a requirement has
not been complied with by the writ petitioners: #
CONCLUSION:
37. An upshot of the above discussions is that the High Court could not have
issued the impugned directions in absence of the promotees having not been
impleaded as parties. Furthermore, the order of dereservation was not under
challenge. #
38. In these appeals, this Court is not concerned with the effect of the
orders passed by the High Court in the writ petitions filed by 13 Scheduled
Tribe candidates. We must, however, notice that it has been stated at the Bar
that the said writ petitions had been disposed of only relying on or on the
basis of the impugned judgment. What would be the effect of the orders passed
in the said writ petitions is not a matter which we have been called upon to
determine. Suffice it, however, to point out that in relation to the said
orders also the requisite consequences of setting aside the judgment of the
High Court must ensue and it would be open to the High Court to pass
appropriate orders in accordance with law in appropriate proceedings. #
39. Submission of Mr. Ganpule to the effect that both the appellants and the
Scheduled Tribe candidates can be adjusted in view of the fact that 29 posts
are lying vacant is also not a matter which can be decided by this Court for
the first time in these appeals. As noticed hereinbefore, the Bank had
categorically stated that having regard to the changed situation, they are not
in a position to make any further promotions to the post of 'officers'. This
Court, in the aforementioned situation, cannot, thus, issue any directions upon
the Bank to change its policy decision and accommodate the Scheduled Tribe
candidates in violation of its own policy decision. It is for the Bank, the
Sponsor Bank as also NABARD to take an appropriate decision in this matter. #
40. For the reasons aforementioned, the impugned judgments of the High Court
cannot be sustained which are set aside accordingly. Civil Appeal Nos.
4593-4594 and 4595-4596 of 2002 are allowed; whereas Civil Appeal No. 4597 of
2002 is dismissed. No costs. #