No 847 of 1987
Under Article 32 of the Constitution of India
Rajinder Sachar KR Nagaraja PK Rao RS Hegde VA Babu and R Rajappa for the Petitioners
KN Bhat Vijay K Verma and Ms Madhu Moolchandani for the Respondents
The Judgment of the Court was delivered by KASLIWAL J
This Petition under Article 32 of the Constitution of India has been filed by the Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association representing the interest of Scheduled Castes and Scheduled Tribes Employees of the Syndicate Bank all over India as well as by three other Assistant Managers of the Syndicate Bank
The case as set up in the petition is that Group A  Officers posts which are Class I posts contain different grades called Junior Management Grade Scale I Middle Man agement Grade Scale II Middle Management Grade Scale III and like this upto Grade Scale VII
The criteria for promo tions from Junior Management Grade Scale I to Middle Manage ment Grade Scale II and so on is based on a promotion policy dated 1791985 flamed in this regard by the Bank
According to the petitioners the Syndicate Bank is a Nationalised Bank owned and controlled by the Central Government
All the policy decisions and major internal administration are regulated and governed by and under Rules issued by the Central Government from time to time
In order to implement the principles enshrined in the Constitution of India grant ing benefit to members belonging to Scheduled 716 Castes and Scheduled Tribes the Central Government evolved the concept of quota system in the ratio of 15 and 7 12 reservation for Scheduled Castes and Scheduled Tribes re spectively both at the time of recruitment as well as at the time of promotions in all Government organisations
It has been further alleged by the Petitioners that 14 leading banks of the country were nationalised in the year 1969 and the Government ought to have extended the said policy of reservation in the banking sector also wef 1969
However the reservation policy was extended to the banking industry initially in the year 1972 but that re mained restricted in respect of appointments made by direct recruitment only
Later on by a DO
Letter No 102474 SCT B dated 31121977 the Central Government called upon the banks to implement the reservation policy in the matter of promotions posts also
In the matter of promotions within the Officers cadre the respondent bank did not maintain any roster and did not follow the reservation policy on an erroneous impression that the reservation in promotional cadres made through selection method is barred
The peti tioners in this regard have submitted that by an Officer Memorandum issued by the Home Ministry as long back as on 2631970 clearly provided reservations for Scheduled Castes and Scheduled Tribes Officers for their promotion within Class I posts and also in cases of Officers who drew a basic pay of Rs2000 per month or less
Subsequently Department of Personnel and Administrative Reforms also issued an OM No 110 74 Esstt SCT dated 23121974 to all Ministries on
the same lines as contained in the earlier OM issued by the Ministry of Home Affairs dated 26th March 1970
The Government of India Ministry of Finance Department of Economic Affairs Banking Division issued a Circular dated 30th May 1981 addressed to all the 26 Nationalised Banks existing at that time in the matter of reservation for Scheduled Castes and Scheduled Tribes in respect of promo tion
In the aforesaid letter after making a reference to the Department s letter DO No 102475 SCT B dated 31121977 Ministry of Home Affairs OM No 1969 Esstt SCT dated 2631970 and Department of Personnel and Admin istrative Reforms OM No 11074 Esstt SCT dated 231274 it was stated that as per the above Government orders there is no reservation for Scheduled Castes and Scheduled Tribes in Promotion by Selection  within the Officers cadre
It was further stated in the above circular that certain concessions and facilities are to be provided to the Scheduled Castes and Scheduled Tribes Officers in order to improve their chances for selection to the Higher categories of posts in the Officers cadre in accordance with the orders contained in the 717 aforesaid OMs of Ministry of Home Affairs
It was further stated that it has been decided that the concessions men tioned in Para 2 of Home Ministry s Office Memorandum dated 2631970 would be available to the SCST Officers in Public sector BankFinancial Institutions in Promotions by Selec tions  to posts within the Officers cadre upto Scale III
All the banks were requested to implement the Government instructions contained in the Officer Memorandums of Minis try of Home Affairs and Department of Personnel and Adminis trative Reforms dated 2631970 and 23121974 respectively in the existing scheme of promotions with such procedural modifications as may be necessary
The case of the petitioners further is that the Central Government wrongly and erroneously interpreted the above circulars and in taking the view that there was no reserva tion in the promotional posts within the officers cadre
In identical circumstances the Ministry of Steel and Mines in a letter dated April 8 1982 addressed to the Chairman of the Steel Authority of India Limited and letter dated August 19 1982 from the Steel Authority of India to the Chief Person nel Manager Bokaro Steel Plant took the view that the Sched uled Castes and Scheduled Tribes personnel were not entitled to the benefit of reservation in the matter of promotion of selection posts within Group A 
The Bihar State Harijan Kalyan Parishad came before this Court by special leave challenging the above view taken by the Steel Authority of India and the Union of India
This court in Bihar State Harijan Kalyan Parishad vs Union of India  Ors  granted special leave
This Court held in the above case that a close perusal of the directive and in particular paragraph 9 which dealt with the concessions to employees of Scheduled Castes and Scheduled Tribes in promotions by selection method makes it abundantly clear that the rule of reservation is also applicable to promotions by selection to posts within Group A  which carry an ultimate salary of Rs2250 per month or less but the procedure is slightly different than the case of other posts
It was further held in the above case that while the rule of reservation applies to promotions by selection to posts within group A  carry ing a salary of Rs2250 per month or less it is prescribed that only those officers belonging to the Scheduled Castes and Scheduled Tribes will be considered for promotion who are senior be within the zone of consideration
Thereafter a Select List depending upon the number of vacancies would be drawn up in which also those officers belonging to Scheduled Castes and Scheduled Tribes would be included who are not considered unfit for promotion
Their position in the Select List would be that assigned to them by the 718 departmental Promotion Committee on the basis of the record of service
In other words their inclusion in the Select List would not give them seniority merely by virtue of their belonging to the Scheduled Castes and Scheduled Tribes over other officer s placed above them in he Select List made by Departmental Promotion Committee
The court bus quashed the List dated April 8 1982 and August 19 1982 and directed the respondents to give effect to paragraph 9 of the Presidential directive wef
the date of the directive
Subsequently a Miscellaneous Petition No 363786 was also filed in view of a misunderstanding of the above Judgment by the Authorities
The Court by order dated 21st January 1987 deciding the above miscellaneous petition and made the following observations We wish to clarify the position by stating that the Sched uled CastesScheduled Tribes Officers who are senior enough to be within zone of consideration for promotion should be included in the Select List against the vacancies available to the members of Scheduled Castes Scheduled Tribes accord ing to the rosters provided they are not considered unfit for promotion
Paragraph 2 of the Presidential Directive should be strictly adhered to and effect shall be given on the basis of scales of pay that obtained prior to 1975 as mentioned in that paragraph
The officers promoted as a consequence of our order will be entitled to be paid salary and allowances from the respective dates with effect from which they should have been promoted After the above decision of the Supreme Court which applied in all force to the case of the present petitioners a meeting took place between the representatives of Syndi cate Bank SCST employees Association and the Management of Syndicate Bank on 16th and 17th April 1986
In the afore said meeting the representatives of the management were fully convinced with the stand taken by the representatives of Syndicate Bank SC and ST employees Association and after agreeing in principle they assured to take up the matter very strongly again with the Government of India Ministry of Finance Banking Division for their approval
The peti tioners thereafter made frantic efforts and also submitted representations but no relief was granted to the petition ers
It may be mentioned that Minister of State for Finance Government of India in his letter dated November 22 1986 addressed to Shri Banwarilal Bairva Member of Parliament clearly admitted as regards the reservation for SCST em ployees in Indian Overseas Bank that he had checked up his reply to the Lok Sabha 719 starred question No 342 answered on 5th August
1986 and had  got further clarifications from the bank of the subject
It was further stated in the above letter as fol lows In respect of promotions
the bank was maintaining rosters for only such category of posts to which the reservations were being applied by the bank
Since as per the Brochure on reservations for SCsSTs are available in promotions within the officers cadre only if they are based on seniority and the bank considered the method of promotions followed by it as one based on selection
it did not consider maintenance of rosters necessary
During the course of discussions between the officials of the bank and Banking Division it was revealed that the procedure followed by the bank for effecting promotions within the officers cadre was the one falling within the categorisation of seniority
The bank was immediately advised to maintain rosters even for these promotions within the Officers cadre and to provide for reservations for the SCsSTs
The bank has accepted its mistake and has already agreed to provide for reservations and also to calculate the backlog from 1978 when the reser vations in promotions were first introduced in the banks
 It may be also mentioned that the Government of India Ministry of Finance Department of Economic Affairs Banking Division vide letter No F No 107286 SCT B dated 28111986 addressed to all the nationalised banks also clarified the position in regard to reservations for SCST in promotions as under It may be recalled that instructions were issued by the Government on 351980 advising bank to apply the provisions of carry forward interchange and lapsing of vacancies in promotions also because of certain factors even though strictly speaking these provisions are not applicable to promotions by selection
In doing so the posts filled by selection method were specifically categorised as those where promotions are made on the basis of a written examina tion followed by interview andor on the basis of the inter view
On the other hand promotions based on the assessment of the confidential reports of the officers were classified as those based on seniority subject to fitness
The banks are therefore requested to review the method 720 of promotions followed by them and ensure that wherever the rosters are to be maintained for determining the number of vacancies reserved for SCST
This is done scrupulously
The results of the review may be intimated to the Government by 15th December 1986
While intimating the information the methodology adopted for effecting promotions from various cadresscales should be specifically intimated
The grievances of the petitioners is that despite the aforesaid unequivocal directions from the Government the bank failed to make reservations for the Scheduled CastesScheduled Tribes employees
The petitioners made representations to the respondents in this regard in which it was reiterated that after decision of the Supreme Court in Bihar State Harijan Kalvan Parishad vs Union Of India  Ors supra and further order of clarification dated 21st January 1987 the petitioners were entitled to the same treatment
However the grievances of the petitioners were not redressed and a view was taken by authorities of the respondentbank that there was no direction for the Govern ment of India for prescribing reservation policy for offi cers cadre and that they were following the selection method or promotion in the case of Officers posts
The Union of India flied a counter affidavit contesting the stand taken by the petitioners
So far as the bank is con cerned they did not any separate reply in detail but took the stand that the Syndicate banks was a Nationalised bank and was under the Administrative control of the Government of India Banking Division as such the bank is guided in the discharge of its functions by any directions issued by B anking Division Ministry of Finance Government of India from one to time
Reference was made to Regulation 171 according to which promotions to all grades of officers in the Bank were required to be made in accordance with the policy laid down by the Board from to time having regard to the guidelines of the Government if any
in view of these circumstances it was stated in the counter affidavit that they fully adopt all the submissions of fact and law made by the Government of India in its counter affidavit
We have heard Mr R Sachar Learned counsel for the peti tioner
KN Bhat for the Syndicate Bank and Mr R Rajap pa for the Union of India
It may be stated at the outset that though the union of India in its reply had taken several grounds for contesting the petition but the Learned Counsel appearing for the Union of 721 India conceded before us and made a statement that he was not pressing the grounds taken in the counter affidavit filed by the Union of India and they would abide by any directions given by this Hon ble Court
Mr Bhat appearing on behalf of the Bank also submitted that the Bank was bound by the decisions taken by the Government of India Ministry of Finance Banking Division and the Bank was not at fault in not granting relief to the petitioners in as much as the Government of India was not clear in its policy of reserva tion
The attitude of the Government of India is clearly discernible from its counter affidavit filed in the present case
It was thus prayed that this Hon ble Court should not hold the Bank responsible for not granting an appropriate relief to the petitioners at its own end and for dragging the petitioners unnecessarily in this litigation
Mr Sachar contended that the Ministry of State for Finance Government of India in his letter dated November 22 1986 addressed to Shri Banwari Lal Bairva Member of Parliament made it clear that during the course of discus sions between the officials of the bank and banking division regarding reservations for SC ST employees of the Indian Overseas Bank it was revealed that the procedure followed by the bank for effecting promotions within the officers cadre was the one falling within the categorisation of seniority
The bank was immediately advised to maintain rosters even for these promotions within the officers cadre and to provide for reservations for the SCs STs
It was further mentioned in the above letter that the bank accepted its mistake and had already agreed to provide for reserva tions and also to calculate the backlog from 1978 when the reservations in promotions were first introduced in the banks
In another letter issued by the Banking division of the Ministry of Finance dated 281186 addressed to the Chairmen and Managing Directors of 20 nationalised banks it was mentioned as under It may be recalled that instructions were issued by the Government on 3580 advising banks to apply the provisions of carry forward interchange and lapsing of vacancies in promotions also because of certain factors even though strictly speaking these provisions are not applicable to promotions by selection
In doing so the posts filled by selection method were specifically categorised as those where promotions are made on the basis of a written examina tion followed by interview andor on the basis of the inter view
On the other hand promotions based on the 722 assessment of the confidential reports of the officers were classified as those based on seniority subject to fitness
 The banks were therefore requested to review the method of promotions followed by them and ensure that wher ever the rosters are to be maintained for determining the number of vacancies reserved for SCST this be done scrupu lously
Mr Sachar brought to our notice the promotion policy in respect of officers of the Syndicate Bank issued on 17985 annexed with the writ petition as Annexure L at point number 3 follows 3 The Promotion Policy identifies the following four factors as relevant for ascertaining the suitability of officers for promotion from one scale to another a Seniority for promotions upto SMGS IV b Educational and Professional Qualifications for movement to Middle Management Grade Scale II only
c Performance in the gradescale
d Potential as identified in the interview for movement to Middle Management Grade Scale III and above
It was thus submitted that from a reading of the two letters dated 221186 and 281186 together with the promo tion policy issued by the Syndicate Bank it was clear that for promotions from one scale to another upto SMG IV was based on seniority and the Syndicate Bank as such ought to have made promotions upto SMGS IV by giving benefit of reservation to SCSTs in the employment of the bank
It was also contended by Mr Sachar that upto 1979 the Syndicate Bank made promotions of officers from one scale to another purely on the basis of officers completing five years of service as on 31st December of previous year
No promotions were made in 1979 1980 and 1981
Since 1982 the promotions within the officers cadre were being made on the basis of the following policy The minimum eligibility service and factor weightage shall be as follows 723 Movement Minimum Points Points Maximum Maximum from eligibility for the points points service as senio educa for for on 31st rity tional perfor potential December  Profe mance as iden of Previous ssional in the fied in Year qualifi scale the inter cation view JMGS to 7 years in 60 10 30 Nil MMGS II JMGS I MMGS II 5 years in 50 30 20 to MMGS MMGS II III MMGS III 5 years in 20 50 30 to SMGS MMGS III IV SMGS IV 3 years in 60 40 to TEGS V SMGS IV SMGS V to 2 years in 60 40 TEGS VI SMGS V TEGS VI to 3 years in 60 40 TEGS VII TEGS VI It was contended that from the above policy it would be clear that there was no written test and interview for promotions from Gr
I to Gr
II and that 60 of the marks had been fixed for seniority
The above policy further makes it clear that the seniority was considered a predominant factor
The Government of India in its office memorandum dated 271172 had provided for reservation of 15 and 712 for SC and ST candidates respectively and the Government of India Banking Division had made the reservation policy applicable in the case of promotional posts also vide its DO Letter No 102474 SCT B dated 311277
Thus there remains no ambiguity and the respondent bank ought to have given benefit of reservation policy from 1st January 1978 to the members of SCsSTs in the cadre of officers
Mr 724 Sachar also submitted that as already mentioned above in the matter of employees of the Indian Overseas Bank rosters for calculating the vacancies reserved for the SCsSTs had been applied in the case of promotions within the officers cadre
It was further argued that the principle of contemporanea ex position ie interpreting the statute or any other document by reference to the exposition it has received from contem porary authority has to be applied in case of employees of the Syndicate Bank also while effecting promotions within the officers cadre
Reliance in support of the above conten tion is placed on Desh Bandhu Gupta  Company  Others vs Delhi Stock Exchange Assn
Ltd  We find no force in the above contention of Mr Sachat
A perusal of the promotion policy goes to show that for the purpose of promotions in the cader of officers from JMGS to MMGS II and from MMGS II to MMGS III and then upto scale VII is not based on seniority alone
Apart from the points for seniority other factors based on selective process were also important and as such it cannot be held that such promotions in the higher scale were based solely on seniori ty
A perusal of the criteria laid down in the promotion policy already extracted above clearly goes to show that apart from points for seniority points for educational and professional qualification points for performance in the scale and points for potential as identified in the inter view have also to be assessed while making appointment by promotion
Merely because in the case of promotion from JMGS to MMGS II points for seniority being mentioned as 60 it cannot be said that such promotion in scale II may be con sidered as promotion otherwise than by the method of selec tion
In our view unless the promotion is based on seniority alone and other factors based on merit such as educational and professional qualifications performance in the scale written examination or interview have no material bearing it cannot be considered as a promotion based on seniority
A perusal of the policy shows that it is a hybrid system of promotion in which upon scale IV points are given for sen iority as well as for other factors also which are based on a sort of selection process depending upon the educational qualifications performance in the scale and interview
While in the case of promotion from scale IV to scale VII there are no points given for seniority at all
Thus taking in view the entire scheme of promotion policy we think that promotions in the officers cadre from JMGS I to Scale VII shall be considered as promotions on selection basis
Howev er the rule of reservation for SCsSTs will apply to ap pointments made by promotion on selection basis subject to a procedure somewhat different from usual procedure adopted in filling up 725 posts reserved for SCs and STs on selection basis alone for appointments to be made by direct recruitment
Mr Sachar then submitted that in case the above policy of promotion is not considered as based on seniority or otherwise than by selection the petitioners are to be governed by the principles already laid down in Bihar State Harijan Kalyan Parishad vs Union of India  Ors supra
It was contended that in identical case though relating to employees of Steel Authority of India Ltd this Court interpreted paragraph 9 of the Presidential directive in the case of promotions within group A  which provided as under In promotions by selection to posts within Group A  which carry an ultimate salary of Rs2250 per month or less the Scheduled CasteScheduled Tribe officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the Select List has to be drawn up would be included in that list provided they are not considered unfit for promotion
Their position in the select list would however be the same as assigned to them by the Departmental Promotion Committee on the basis of their record of service
They would not be given for this purpose one grading higher than the grading otherwise as signable to them on the basis of their record of service
It was held in the above case that a close perusal of the directive and in particular paragraph 9 which deals with concessions to employees of SCST in promotions by selec tion methods makes it abundantly clear that the rule of reservation is also applicable to promotion by selection to posts within group A  which carry ultimate salary of Rs2250 per month or less but that the procedure is slightly different than in the case of other posts
We find force in this alternative submission made by Mr Sachat
Even though the promotional posts are based on selection method the rule of reservation will apply to posts within group A  and the benefit of reservation policy to members of SC and ST cannot be denied on the ground that promotional posts are to be filled by method of selection
We find no distinction in the case of employees in the officers group in JMGS I of the Bank from the officers falling in group A  under the Steel Authority of India Ltd for the purpose of applying reservation policy
Gov ernment of India committed a clear mistake in 726 not applying the principle already decided in Bihar State Harijan Kalyan Parishad s case supra to the employees of the Syndicate Bank and in not giving a clear direction in this regard to the management of Syndicate Bank
There can be no manner of doubt that the management of the Syndicate Bank was not at fault as they were bound by the instructions and policy laid down by the Banking division of the Finance Ministry of the Government of India and in the absence of a clear direction from the Government of India it was not possible for them to grant relief to the SCST employees of the bank
As already mentioned above the Union of India had wrongly taken a contrary stand in its counter filed to the present petition and clearly in derogation to the principle already decided in the case of Bihar State Harijan Kalyan Parishad supra by this Court
In the result this petition is allowed
The orders of the respondents dated 15th June 1987 and 25th June 1987 are declared as illegal
It is further decided that though group A  posts are selection posts still the reservation policy is applicable to such posts and the respondents are directed to compute the backlog of untilled reserved quota available to the SCST officers in the promotional posts with effect from 11
1978 the date of introduction of reservation policy in the respondent bank
The respondents are further directed to grant promotion to the SCST employ ees of the Syndicate Bank with all consequential benefits of salary and allowances from the respective dates wef which they should have been promoted after applying the roster system in their favour
We grant three months  time to carry out these directions
The petitioners would be entitled to costs to be paid by the respondent Union of India
RNJ Petition allowed


Summary:
The respondent imported certain goods and claimed in its Bills of Entry that the imported goods fell under Tariff Item No 8460
The Customs Authorities rejected the claim by holding that the goods were classifiable under Tariff Item No 73152
The respondents preferred an appeal before the Collector of Customs which was also dismissed
Thereafter the respondent filed a second appeal before the Customs Excise and Gold Control Appellate Tribunal con tending that in view of the earlier decision of a Bench of three members of the Tribunal in Bakelite Hylam Ltd Bombay ELT 240 an identical classification ought to have been adopted by the Customs authorities for identical goods
By its order dated 22101986 a Bench of two members of the Tribunal stated that they doubted the correctness of the earlier decision of a Bench of the three members of the Tribunal and they referred the case to the President of the Tribunal for constituting a larger Bench
By its order dated 431987 the President of the Tribunal referred the case to a larger Bench of five members
The respondent filed a writ petition in the High Court challenging the orders of the Bench of two members and that of the President of the Tribunal which struck down both the orders by holding that the Bench of two members ought to have followed the earlier decision of the larger Bench of 3 judges and a reference of the case to a still larger Bench was contrary to judicial precedent and judicial discipline
In appeal to this Court it was contended on behalf of the Union of India that Section 129 C of the empowers the Presi 790 dent of the Tribunal to constitute larger Benches to resolve conflicts in opinion arising between members of a Bench or between Benches of the Tribunal
The Tribunal has ample powers to regulate its own procedure apart from the express provisions of the statute in that behalf
On behalf of the respondent it was contended that the Tribunal is a creature of the Statute
Its jurisdiction is limited to the specific powers conferred by the statute
It has no inherent jurisdiction and its powers are not plenary and are limited to the express provisions contained in the statute
Allowing the appeal this Court HELD 1
There is no doubt that the Tribunal functions as a Court within the limits of its jurisdiction
It has all the powers conferred expressly by the statute
Further more being a judicial body it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers
Certain powers are recognised as incidental and ancillary not because they are inherent in the Tribunal nor because its jurisdiction is plenary but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised
794F G 11 Where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution
795A Maxwell on Interpretation of Statutes Eleventh edition and Income Tax Officer Cannanote vs MK Mohammad Kunhi 15 referred to 2
It is true that sub section 5 refers to difference of opinion arising amongst members of a Bench in a particu lar case and not specifically where the members of a Bench doubt the correctness of an earlier decision
However section 129 C confers power of reference upon the President
That power should be construed to be wide enough to enable the President to make a reference where members of a Bench find themselves unable to decide a case according to what they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree
In such cases it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a larger 791 Bench
That is a power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions
795H 796A B 21 It is true that a Bench of two members must not lightly disregard the decision of another Bench of the same Tribunal on an identical question
This is particularly true when the earlier decision is rendered by a larger Bench
The rationale of this rule is the need for continuity certainty and predictability in the administration of justice
Persons affected by decisions of Tribunals or Courts have a right to expect that those exercising judicial functions will follow the reason or ground of the judicial decision in the earlier cases on identical matters
Classification of particular goods adopted in earlier decisions must not be lightly disregarded in subsequent decisions lest such judicial inconsistency should shake public confidence in the adminis tration of justice
It is however equally true that it is vital to the administration of justice that those exercising judicial power must have the necessary freedom to doubt the correctness of an earlier decision if and when subsequent proceedings bring to light what is perceived by them as an erroneous decision in the earlier case
In such circum stances it is but natural and reasonable and indeed effica cious that the case is referred to a larger Bench
795B E