IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.12.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Writ Appeals No.304 of 1998, 324 of 1998, 342 of 1998, Writ Petitions No.4599 of 1998 and 7031of 1998 and C.M.P.No.3043, 3342, 3343, 3463 of 1998 and W.M.P.No.10731 of 1998 W.A.No.304 of 1998: All India Union Bank of India, SC/ST Employees Association, rep.by its Deputy General Secretary Mr.E.Kandeeban, Thiruninravur ... Appellant/Petitioner Vs. 1.The Chairman-cum-Managing Director, Union Bank of India, Union Bank Bhavan, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai-400021. 2.The Executive Director, Union Bank of India, Union Bank Bhavan, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai-400021. 3.The General Manager (Personnel), Union Bank of India, Union Bank Bhavan, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai-400021. 4.Union of India, rep.by its Joint Secretary, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5.Union of India, rep.by its Additional Secretary, Ministry of Finance, Department of Economic Affairs, Banking Division, Jeevandeep Building, Parliamentary Street, New Delhi. 6.National Commission for SC/ST, rep.by its Chairman, Lok Nayak Bhavan, New Delhi. ... Respondents W.A.No.324 of 1998: UCO Bank SC/ST & OBC Employees Council, rep.by its President C.W.C. - G.Murugesan ... Appellant /Petitioner Vs. 1.The Chairman and Managing Director, UCO Bank, Calcutta. 2.The Executive Director, UCO Bank, 10, B.T.M.Sarani, Calcutta. 3.The General Manager (Personnel) UCO Bank, 12, Old Court Road, Calcutta. 4.The Union of India, rep.by its Joint Secretary, Ministry of Personnel Public Grievances and Pensions (Dept.of Personnel, Training) New Delhi. 5.The Union of India, by its Additional Secretary, Ministry of Finance, Dept.of Economic Affairs, Banking Division, Jeevandeep Building, Parliamentary Street, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 6.The National Commission for SC/ST rep.by its Chairman, Ministry of Social Welfare, Lok Nayak Bhavan, New Delhi. ... Respondents/Respondents W.A.No.342 of 1998: The Central Bank of India SC/ST Employees Welfare Association, Chennai Zone, Tamil Nadu, Through Shri R.Thavasi, General Secretary ... Appellant/Petitioner Vs. 1.The Chairman and Managing Director Central Bank of India, Central Office, Chandramukhi, Nariman Point, Mumbai-400021. 2.The Executive Director of Central Bank of India, Central Office, Chandramukhi, Nariman Point, Mumbai-400021. 3.The General Manager (Personnel), Central Bank of India, Central Office, Chandramukhi, Nariman Point, Mumbai-400021. 4.The Zonal Manager, Central Bank of India, Zonal Office, 48/49, Montieth Road, Egmore, Chennai-8. 5.The Union of India, rep.by its Joint Secretary, Ministry of Personnel, Public Grievance and Pension Department of Personnel and Training, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 6.The Union of India, rep.by its Additional Secretary, Ministry of Finance, Department of Economic Affairs (Banking Division), Jeevandeep Building, Parliament Street, New Delhi. 7.The National Commission for SC/ST, rep.by its Chairman, Jeevandeep Building, New Delhi. ... Respondents/Respondents W.P.No.4599 of 1998: All India Canara Bank, SC/ST Employees Association, (Regn.No.125/79-80), rep.by its Asst.Secretary, Mr.A.Arivoli, S/o.Adhimoolam, Canara Bank, Egmore, Chennai-8. ... Petitioner Vs. 1.The Chairman-cum-Managing Director, Canara Bank, Head Office, 112, J.C.Road, Bangalore-560002. 2.The General Manager, Personal Management Section, Personal Wing, Canara Bank, Head Office, 112, J.C.Road, Bangalore-2. 3.The Union of India, rep.by the Addl.Secretary, Ministry of Finance, Department of Economic Affairs (Banking Division), Jeevandeep Building, Parliamentary Street, NewDelhi. 4.The National Commission for SC/ST, rep.by its Chairman, Lok Nayak Bhavan, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5.Union of India, rep.by its Joint Secretary, Ministry of Personnel, Public Grievance and Pension Department, Department of Personnel and Training, New Delhi. 6.The General Manager, Canara Bank, Staff Sec.(O), Circle Office, 563, Anna Salai, Teynampet, Chennai-18. ... Respondents W.P.No.7031 of 1998: All India Syndicate Bank Scheduled Caste and Scheduled Tribes Employees Welfare Association, rep.by its Joint Secretary, Mr.S.P.Jeyakumar, S/o.late Subbiah, Syndicate Bank, Main Branch, Chennai. ... Petitioner Vs. 1.The Chairman and Managing Director, Syndicate Bank, Head Office, Manipal, Karnataka State. 2.The General Manager (Personnel), Syndicate Bank, Head Office, Manipal. 3.The Deputy General Manager, Syndicate Bank, Zonal Office, Chennai-2. 4.The Union of India, rep.by the Addl.Secretary, Ministry of Finance, Department of Economic Affairs (Banking Division), Jeevandeep Building, Parliamentary Street, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5.Union of India, rep.by its Joint Secretary, Ministry of Personnel, Public Grievance and Pension Department, Department of Personnel and Training, New Delhi. 6.The National Commission for SC/ST, rep.by its Chairman, Lok Nayak Bhavan, New Delhi. ... Respondents * * * For appellants in : Mr.N.G.R.Prasad for W.As & : M/s.Beula Rajakumari (in W.As.) and for : and M/s.S.Saravanakumar petitioners in W.Ps. (in W.Ps.) For R.1 to R.3 in W.A.No.304/98 : Mr.D.Krishnan For R.1 to R.3 in W.A.No.324/98 : Mr.Srinath Sridevan For R.1 to R.4 in W.A.No.342/98 : Mr.Rangarajan and Prabhakaran For R.1, R.2 & R.6 in W.P.No.4599/98 : Mr.K.R.Vijayabanu For R.1 to R.3 in W.P.No.7031/98 : Mr.V.Karthick for M/s.T.S.Gopalan & Co. For R.4 to R.6 in W.A.Nos.304 & 324/98, For R.5 to R.7 in W.A.No.342/98, : Mr.M.Ravindran, For R.3 to R.5 in : Addl.Solicitor General, W.P.No.4599/98 and : assisted by Mr.C.Gurulingam and For R.4 to R.6 in : Mr.M.Devadas, SCGPC W.P.No.7031/98 * * * W.A.Nos.304, 324 and 342 of 1998 have been filed under Clause 15 of the Letters Patent, against the common order dated 2.2.1998 passed by a learned single Judge of this Court respectively in W.P.Nos.7735, 1747 and 11366 of 1997. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.7735 of 1997 has been filed under Article 226 of the Constitution, praying to issue a Writ of Certiorarirified Mandamus to call for the records relating to the letter in Ref.No.DP/PPS:NF: 431:97 dated. 05.02.1997 and staff Circular No.4358 dated. 25.04.97 and the fax message dated. 19.5.1997 in Ref.DP/PPS/II-III-1385/97 dated. 19.5.1997 of issued by the 3rd respondent and quash the same and to direct the respondent to implement to Reservation for SC/ST officers as envisaged under the provision of Article 16(4) (A) of the Constitution of India and to give promotions to SC/ST Employees/Officers in the 3rd respondent Bank in accordance with the same. W.P.No.1747 of 1997 to issue a writ of mandamus directing the respondents to implement the reservation for SC/ST Officers as envisaged under ARticle 16(4A) of the Constitution of India in the matter of promotions of officers in the respondent bank from the Post of Junior Management, Scale I & Middle Management Scale II & III, Senior Management, Scale IV & V and Top executives Scales VI & VII. W.P.No.11366 of 1997 to issue a Writ of Mandamus forbearing the respondents 1 to 4 from implementing the selection made for Junior Management Grade Scale I to Middle Management Grade Scale II as per Circular made on 08.01.1997 (CO:PRS:96-97:248) 3rd Respondent without following the rule of reservation and to direct the respondents 1 to 6 to follow the Rule of reservation as per provisions of Article 16 (4)(A) of Consitution of India in the matter of selection of from Junior Management grade Scale I to Top executive Grade scale VII from SC/ST employees of the 1st Respondent Bank and fill up the backlog vacancies from Junior Management Grade Scale I to top Executive Grade Scale VII from SC/ST Employees of the 1st Respondent bank from the year 1978. W.P.No.4599 of 1998 has been filed under Article 226 of the Constitution, praying to issue a Writ of Certiorarirified Mandamus to call for the records of the 2nd respondent in Memo No.91/97, dated 22.11.1997 and quash the same and for a direction to the respondent to give reservation in promotions to the Officers from Scale I to Scale VII by following the instructions issued by the Government of India in Office Memorandum No.36012/18/95, Ministry of Personnel and Training dated 13.8.1997. W.P.No.7031 of 1998 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the records of the 3rd respondent in Memo.Ref.No.CIR.99:ZOCH:PD)S.05.98, dated 22.4.1998 and quash the same and direct the respondent to give promotion for Schedule Caste Schedule Tribes Employees in the category of Junior Management Grade Scale-I to TEG Scale-VII by following the Government of India instructions issued in Office Memorandum No.36012/18/95 Ministry of Personnel Public Grievances and Pensions Departments of Personnel and https://hcservices.ecourts.gov.in/hcservices/ Training inforcement of Art.16(4A) of the Constitution of India. * * * COMMON JUDGMENT ELIPE DHARMA RAO, J. Since the issue involved in all these matters is common, they all are heard together and are being disposed of by this common judgment. 2. In all the matters, the appellants and the petitioners are the SC/ST Employees Union of various Banks. It is their case that the SC/ST officers in the Banks are entitled to get 22½% reservation i.e. 15% reservation for S.C. and 7½ reservation for ST in promotion as in any other Union of India organisation; that in spite of repeated directions and instructions from Government of India to Banks, they are deliberately ignoring the directions and thereby they are acting in a manner prejudicial to the rights of the SC/ST employees; that whenever vacancies arise, the respondent Banks used to declare in notification, without specifying any reservation to the SC/ST officers; that as per the Promotion Policy for Officers Agreement, which was entered into between the UCO Bank Management and All India UCO Bank Officers Federation at Calcutta on 26.8.1992, guidelines/directives/administrative instructions were issued by the Government of India from time to time regarding relaxation, concession, reservation etc. for SC/ST, physically handicapped, ex- servicemen and other special categories of officers in the matter of scale to scale promotion within the officers grade will be deemed to be a part of the policy and given effect to accordingly and therefore, according to the petitioners, this is impliedly coming within the scope of the amendment to the Constitution whereby Article 16(4-A) was incorporated and thereafter, the petitioners sent a representation on 28.1.1997 requesting the Banks to make reservation to SC/ST officers in the inter-scale promotion, but the respondents have not taken any step to reserve the vacancies for SC/ST officers and they have also not followed the relevant circulars issued by the Central Government and their own guidelines in the matter of promotion policy. The general grievance of the petitioners is that in spite of amendment to Constitution, incorporating Article 16(4-A), the respondents are not following the same. They have also submitted that there is inadequate representation in various categories of officers belonging to SC/ST and therefore, they are entitled to implement the promotion policy taking into consideration the inadequacy of representation among the top grade officers. 3. The respondents have stiffly opposed the claim of the petitioners contending that the provision under Article 16(4-A) of the Constitution does not confer any right on any citizen to demand such reservation, nor is there a corresponding constitutional duty imposed on the State to make such a reservation, since it is only an https://hcservices.ecourts.gov.in/hcservices/ enabling provision which confers discretionary power on the State to make provision for reservation in matters of promotion to any class or classes of posts in the service in favour of SC/ST, if the State is of opinion that they are not adequately represented in the service. According to them, the promotion to the Officers Grade is on the basis of merit-cum-seniority to which reservation policy cannot be made applicable. It has been the case of the respondents that the reservation is applicable only in the first instance where it relates to promotion from clerical grade to the lowest rank in the Officers Grade and the present promotion is from the lowest to the next scale i.e. Middle Management Scale-II and therefore, the principle of reservation has no application and no direction has also been issued to the Banks to have reservation from Scale I to II. They also make reference to Office Memorandum No.38012/6/83-East (SCT) dated 1.11.990 issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel and Training), Government of India, addressed to all the Ministries and Departments of Government of India including the Ministry of Finance (Banking Division) and held that there is no reservation within Group 'A' to posts. 4. At this juncture, we feel it apt to mention that this Office Memorandum on which much reliance is being placed by the respondents Banks was issued on 1.11.1990, much prior to insertion of Article 16 (4-A), by the Constitution 77th Amendment, w.e.f. 17.6.1995. 5. Though from the year 1955, the Scheduled Caste and Scheduled Tribe employees were enjoying reservations in promotions, in INDRA SAWHNEY vs. UNION OF INDIA [AIR 1993 SC 477], dated 16.11.1992, the Nine Judge Bench of the Honourable Apex Court has held that the 'reservation under Article 16(4) is confined to initial appointment and cannot extend to reservation in the matters of promotion.' 6. It is, in these circumstances, the Union of India, in order to better serve the purpose and spirit of Article 16 and to protect the interest of weaker sections, has inserted Clause 4A to Article 16 by the Constitution 77th Amendment, with effect from 17.6.1995, which reads as follows: "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." 7. After this amendment, in UNION OF INDIA vs. VIRPAL SINGH CHAUHAN [(1995) 6 SCC 684], the Honourable Apex Court has held that 'a roster-point promotee getting the benefit of accelerated promotion would not get consequential seniority and as such, consequential https://hcservices.ecourts.gov.in/hcservices/ seniority constituted additional benefit and, therefore, his seniority will be governed by the panel position.' 8. Thereupon, the Government, in order to protect the interest of the Government servants belonging to Scheduled Castes and Scheduled Tribes, thought it fit to further amend Article 16(4-A), to provide for consequential seniority in the case of promotion by virtue of rule of reservation and to give retrospective effect to the proposed constitutional amendment to Article 16(4-A) with effect from the date of coming into force of Article 16(4-A) i.e. from 17.6.1995. Accordingly, by the Constitution (eighty-fifth) Amendment Act, 2001, the words 'in matters of promotion to any class' in Article 16(4-A), were substituted by the words 'in matters of promotion, with consequential seniority, to any class'. 9. Thus, reading the Constitution (77th Amendment) Act, 1995 with the Constitution (85th Amendment) Act, 2001, Article 16(4-A) now reads as follows: "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. Thus, Clause 4-A of Article 16 is carved out of clause (4) of Article 16 and this Article 16(4-A)provides benefit of reservation in promotion only to SCs and STs. 11. The Constitutional validity of Articles 16(4-A) and 16(4-B) was challenged before the Honourable Apex Court in M.NAGARAJ AND OTHERS vs. UNION OF INDIA AND OTHERS [(2006) 8 SCC 212] and the Constitutional Bench of the Honourable Apex Court in the said judgment has held as follows: "121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt https://hcservices.ecourts.gov.in/hcservices/ concept of replacement as held in R.K.Sabharwal. 122. We reiterate 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 all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse." 12. Thus, this Constitutional Bench judgment of the Honourable Apex Court is restoring the position of reservation in promotions to SC/ST which was in vogue prior to Indra Sawhney case. 13. From the materials placed on record, we are able to see that Regulation No.1.1 of the Promotion Policy for Officers of the Uco Bank reads as follows: "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." Therefore, as per this Policy, the guidelines issued by the Government in this regard are binding on the UCO Bank. It has also been admitted on the part of the other Banks that similar is the position with regard to them also. Further more, from the materials placed on record we are also able to see that the Ministry of Finance, Government of India, is the nodal Ministry for framing policy on reservation for financial institutions/banks. 14. Regulation 22 of the Promotion Policy for Officers of the Uco Bank reads as follows: "22. Concessions/Relaxations etc. for SC/ST, Physically Handicapped, Ex-servicemen and Other categories of officers: 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-servicemen 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." 15. Regulation No.1.1 of the Promotion Policy for Officers of the UCO Bank reads as follows: "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." 16. Therefore, as per this Policy, the guidelines issued by the Government of India in this regard are binding on the UCO Bank. It https://hcservices.ecourts.gov.in/hcservices/ has also been admitted on the part of the other Banks that similar is the position with regard to them also. Further more, from the materials placed on record we are also able to see that the Ministry of Finance, Government of India, is the nodal Ministry for framing policy on reservation for financial institutions/banks. The strong contention of the petitioners and appellants in all these matters is that even though the Government of India has time and again instructed the Banks to apply rule of reservation in promotions, the same has not at all been heeded to by the Banks, and thus acted in a much prejudicial manner to the interest of the depressed classes of the Society viz. SC/ST. 17. The learned single Judge, in his common order, while rejecting the case of the petitioners/appellants, has repeatedly observed that no specific notification regarding the reservation in the higher category of posts has been filed before the Court. But, in the cases on hand, a notification issued by the Government of India bearing No.36012/18/95-Estt.(Res.) Pt.II, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, Dated 13.8.1997 has been filed at Page No.39 of the typed set of papers, the same is extracted hereunder for easy reference: "The undersigned is directed to invite attention to this Department's O.M.No.36012/37/93-Estt. (SCT), dated 19.8.1993 clarifying that the Supreme Court had, in the Indira Sawhney case, permitted the reservation, for the Scheduled Castes and the 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/Departments are requested to urgently https://hcservices.ecourts.gov.in/hcservices/ bring these instructions to the notice of all their attached/subordinate offices as also the Public Sector Undertakings and Statutory Bodies etc." 18. This copy was sent to all ministries/Departments of the Government of India and Union Public Service Commission and Staff Selection Commission, New Delhi. There is also no dispute that the Ministry of Finance is the nodal Ministry for framing policy on reservation for financial institutions/banks. Therefore, it follows that the Government of India has given clear instructions to all the ministries/Departments, including the Ministry of Finance to implement reservation in promotions to SC/ST employees. It is an admitted case of the respondents that they are implementing the reservation upto the ministerial staff, whereas when it comes to the scale posts, they are not following the rule of reservation. 19. At this juncture, it is proper to mention that Article 15 of the Constitution deals with discrimination against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Article 16(1) guarantees equality of opportunity in matters of public employment. The term 'Backward Classes' is a comprehensive one, comprising four Sections of our society viz. Scheduled Castes, Scheduled Tribes, Other backward classes and denotified communities. These sections constitute the underprivileged classes of the country, for whom special treatment is accorded in our Constitution. 20. Articles 15(4) and 16(4) profess to bring the socially and educationally backward people to the forefront. Only for the purpose of invoking the equality clause, the makers of our Constitution thought of protective discrimination and affirmative action. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes and Other Backward Class people as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness and an affirmative action has been extensively developed in our country to redress the wrongs of the past. 21. The weaker sections of the society are victims of social injustice, practice of untouchability and segregation from the mainstream of national life. The object of protective discrimination is to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person in which justice — social, economic and political — are enjoyed by them in equal measure with the general members of the society. Dr.B.R.Ambedkar in his closing speech, in reply to the Debates in the Constituent Assembly, had stated that 'the edifice in the Constitution was built up with laborious effect'. The provision for reservation in appointments under Article 16(4) is not aimed at economic upliftment or alleviation of poverty. Article 16(4) is specifically designed to give a due share in the State power to those https://hcservices.ecourts.gov.in/hcservices/ who have remained out of it mainly on account of their social, educational and economic backwardness. Reservation affords backward class of citizens a golden opportunity to serve the nation and thus gain security, status, comparative affluence and influence in decision making process. Article 16(4-A) was incorporated, thereby introducing an enabling provision for providing reservation in the matter of promotion. Backwardness and inadequacy of representation are the constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. 22. In the cases on hand, the appellants have produced the statistics showing the strength of SC/ST officers in various Grade/scale cadres. The statistics provided with regard to Central Bank of India from Scale I to VII clearly show that there is no representation, leave alone adequate representation, for SC/ST officers from the years 1997 to 2008. A consolidated statement for the promotions from the