H!GH COURT OF JUDiCATURE CHHATTISSARH: BILASPUR LP. No^18j3f[9SO PeSUoner Respondente Jtendra Kumar Shrivastava Versus UCO Bank and othe.' Post for order on ^ 'Apri!, 2007. SdA Satish K. Agujhotri Judge < Respondente Versus 1. 2. 3. HIGH COURT OF CHHATTiSGARH AT BILASPUR W. P.No. 219 of 1990 Petitioner Jitendra Kumar Shrivastava, aged 33 yrs, S/o Shri Awadhesh Kumar Shrivastava, Cterk, UCO Bank, Trijunction Branch Vaishali Nagar, Bhilai 4S0023, Disbict - Durg, M.P. (NcwC.G.) UCO Bank, through ite Chairman & Msnaging Director, Head Offics, 10 Br. Rd. Cateutta. General Manager, Personnef, UCO Bank, Head 0 ce, Braboume Road, Calcute. The Govemment of India.ihrough ttie Secretary of Ministry of Finance Oepartment & Economic Affair. (ntewener 1. UCO Bank Scheduled Castes/Scheduted Tribes Emptoyees Counci!, State Branch Madhya Pradesh tttrough te Regiona! Secretary - Pramod Kumar Dongre, agad abouf 33 yeare, S/o Shri D. V. Dongre, Office at UCO Banic branch office, Ch/il Centre, Jabalpur.-, H.Qr. at 12, 0!d Court House Street, 3"* Floor, Calcutta. 2. Pradeep Marieam, aged about 29 ysars, S/o Shri B.S.Martem, Cterk, UCO Bank Jawaharganj Branch, •Jabaipur. V^iT PETITiON UNDER ARTICLES 226 OF TOE COSTtTUTiON OF JNDiA SB: Hon'ble Mr. JusUce Satish K. Agnihotri Shri Ashish Shrivasiava, Advocafe for fhe petifioner. Shri U.N.Awasthy, Senior Advocate with Smt. Raksha Awasthy, Advocate for ths rsspondeRte No. 1 and 2. None for the respondent No.3. None forffie Intervsners No. 1 and 2. ORDER (Passed on this /7'^ay ofApril. 2(X)7) il ,. ,:,,':^^K|iiBa 1. By this^peSfion, the petifener has prayed for a suiteble writiors^ ^.IISB airecfion tp qiiash the memo dafed 2^ June, 1889 (AnnaxuraK^iiUiBiB »"'"M and the examination held on 7.1.1890. It was further prayed that the respondente/au&soriSes bs dirsctsd to ho!d ths exainination, jointly in rsspect of the General and Reser/ed categories, together. Subssquentiy, by amendment aiiowed as pw order dated 6.8.1981, the petftioner prayed for dedariRg ths action points for spscia! rscruitmsnt drive for SC/ST (Annexure W5-C), ss being vioiative of ArSciss 14 and 16 of the Consftutton of india and memo dated 7.2.1989 (Annexure R/6) be also quashed. 2. Ths incSis(xrtafcte facts In nutehel! are Siat ths petitioner was appointed as Cterk on 18.7.1980 in the estabiishment of ttis respondent No.1 Bank by the Divisiona! Manager, UCO Bank, Bhopai. Thsreafter, the peSfionsr v/as appointed as Advance Ledger Posting Machine Operator (ALPM) in the year 1997 white woridng as Clerk. on the ground ofhaving basic computer knowledge. M 3. in this peffion the peBtioner chaltenges the memo dated 26 June, 1989 (Annexurs P/2). as stated above, wherein it is provided to hold a separate promofion test for the Clerks belonging to S.C^S.T candidates. for ctearing ths backl<^ of unfiited reser/sd vacandes for SCs/STs. in terms of the Promotion Policy SetUement dated 13.4.1988 on or before 31.8.1989. Detaiied gujdelines for seisction of the candidates as per dause No. 3 of Part-11, Chapter- ! of the 'olicy Setttement for workmen staff dated 13.4.1888 was Promotion Polics pubiished vide memo dated 2tf! June, 19^ (tonexure P/4). 4. The peStioner. by way of further amendment had chaltenged a ' separate promotion tsst for the ctearance of S.C^S.T. Backlog \- vacancies, as bejng vtoiafive of ArtiCies 14 and 16 of the Constitution of fndia. w ^ . Shri Ashish Shrivastava, teamed counsei appearing for the peSitfoner, v/ou!d submiS that She seiecfon process for rsservation of candidates, held on 24.9.1989 is discriminatory as other process meant for all the categories of candidates, in the examination, held on 7.1.1990, js dffferent than the earifer one. In She eariier examjnation the candidstes were permitted to bring penciis, sharj»nere, and erasers in fte examination haii aRd in Shs subsequsnt examinstion the candidates were permittsd to bring on!y ball-psn. The minimum quali^ir^ marte for general candidates were different than ths same for reserved candiciates. The sn-block proiTioUon of the S.C./S.T. candidates to ctear backk^s wou!d upset the entire roster system, as the promofion of Cierks to ths post of Juntor Management Grsds, Scate-1, provides for fiiling up of 20% •v'scancfes by' direct recruitment, 50% ftroush iTtsrit-cum-ssniorily channei and 30% through senforify channei. in the year of 1989 vvhen the promotions of S.C.and S.T. candidates, by spscia! reeruitment drivs had taken ptece, ths rsser^tion for S.C. and S.T. had gons more than 50% i.s. 242.26%. 6. Per contra, Shri U. N. Awasfty. iearned senior counset witt Smt. Raksha Avsrasfriy, tearned counsel appearing for ths respcmdente No. 1 and 2 ¥i?ou!dsubmit that the pefitioner appeared and faiied in ttie deparbnentai examinaSon hetd on 24.9.1989. The bacMog vacancies. whteh have accrued for want of eiigible candsdates jn S.C./S.T. categories, is in accordanee Viritti the Promotion Poficy SeSUemsnt. tt is wrong to suSmit Siat ths reservaCon of S.C. and K*'. A ,11 S.T. candidates increased more than 50% criteria in a particuiar year. !t was (urther contsndsd giat fte petitioner has no iocus standai to chaiienge fte promoSon process wth respect to the back'Sog vacancies of the S.C. a">d S.T. bscause the petjfioner is a general catsgor/ candidate and he himself has parScipatsd in the examinaiion heid on 24.9.19%, pursuant to the memo dated 20 June, 1888 (Annexure P/4). The pstitionsr has not challenged the promotion policy which providss for resen^itions in case of proraotion aiso from ciericai cadre to the officer cadre. 7. The LICo Bank S.C./S.T. Employees Councii v/as permitted to jnteraene in the matter. Despite notice, none appearsd fer the intsrvsners. 8. I have heard tearned counsel for the parties and perused ths pisadings and documente appendsd ttsereto. It is evident that there «vere250vacancies of bacidog of SC/ST candidates at the rankof Officers in Junior Management Grade, Scals-! cadre as on 20.6.1986, and as on 26.6.19% tote! vacandss ansjng from non-ctearancs of backlog was 336. Pursuant to ths ofRce memo dated 5tt June, 1989 (Annexure R/5), issued by the Govemment of india. Ministr/ of Personnel, Pubiic Grievances & Pensions i3epartment of Peraonnel& Traming, the respondent Bank initiated action for ciearing backfog of reservafen for S.C./S.T. The meroo dated 5th June, 1989 reads as under:- "Mn No. 12/6/88-Estt.(SCT)/SRD!! Govemment of india ;!i*(Kl?![ BKI ssai ;MW';r Pi4inis{ry of Personnei, Public Grievances & Pensions DspartsnenS ofPersonne! & Trainir® North Block, NewDeihi-110(^1, ;'?3!IBSBfl "s;3SSBUBi — ^f-^^^^: Dated, the: 5th June, 198S OFFiCE MEMORANDUM Subject: Special Recruitment Drive for dearins fche backlog of rsservation for Scheduisd Castes/Scheduled Tribes — FiCi'ng up of reserved vacancies in She promotior, quota. "•i.. ^ A A AttenSon is inwted to d.o. f^^^t'ff' No. 36G12/C/88-Estt.(SCT) ntt! nd dated the S'" fvtey, 1983 and No. 3%)12/6/88-Estt.(SCT) Pt. dated 22" May, 18S9 from Secretary (Psrsonne!) addressed to all Secretaries to Sh& Goyernment of !ndia regarding the Special Recruitment Drive being iaunched from 1st June, 1889 to ciear the backj^ of reservafion for Ssheduted Castes/Schsduled Tribss. This matter was ateo discussed in the meeting of fche Secretaries to e Government of India held under ttie Chairmanship of MOS (PP) on 29"' May, 1989. 2. !t has now been dscided that siniultaneously with ttie Special RecruitmenS Drive sil ou{ efforts shouk! bs made to hold msetings of DPCs for promotion in various grades and posts in accordance witti extant instrucSons so that all vacancies for promotion iRduding the carrisc! forward reser/ation for SCs and STs ars filled expeditiousiy. White hoiding the DPCs meeting the exisfins instructions on assGciating officers beionging to SC/ST in the DPCs referred to in para 17.4,17.5 ofthe Procedure on Reservation for SC/ST in Serrfice (7B1 Edrtiw-i) may be scrupuiousty foltowed. 3. The progress of acBon taken m filling up reserved vacanciss in the promotion quota may also be incorporated in the progress report to be sent to the Department of Personnei and Training on 31 August, 1888. (S.K.Parthasarathy) Joint Secretary to the Government of India." 9. Thereafter, vide memodafed 1i^'June, 1S8S (Annexure R/5-A) aif the Pubfic Sector Bante and Financial SnsKtufions were directed to ctear the backlog of fche unfiiied reserved vacaRcies of S.C. and S.T. on or before 31.8.1988. This memo reads as undsr:- "No. 101/13/89-SCT(B) Govemment of india Minis{ry<rfFinancs %-iisaf3 ;?:'>]feBli9 " •"""•"— ;i;**<l Deptt. of Economfc AS (Banicing Division) ,th Datod e 10"' June, 19% To, A!l Public Sector Bante/Financia! InsGtutions. Subject: Specsa! Recruiftnent Drive for cleanng She backiog of resenrions for SCs/STs fitt'mg-up <rf reseroed vacancies in the promotion quota. Sir, In continuation of fliis Division's TeSex message of even number dated 16.6.1988 on the above citsd subject, ! arn dirscted to enclose herewith a copy of Ihe OR4 No. 36012/&'88-Esa. (SCT)-SRD-il dated 5.6.1988 issued S?y DepK. of Psrsonnsl & Training regsrdjng Specia! Drive for ctearing the backlog of unfflled reserv'ed vacsncies for SCs and STs in promotion on or before 31.8.1988. !t is requested that necesssry action may ptease be taken to ctear the backlog eristing as on 1.1.1989 in promotions. You are further requested to Jnti'niats to this Division fhe deteite of backlog existing as on 1.11989 and also the steps proE?osed to be taken to clear She above back!osby%).6.19S0. Recsjpt of Siis tetter may piease be acknowiedged. Youre faittifully, (S.P. Bhatia) Under Sscretar/ to the Govt. of india." tO.The Government of india issued AcBon Points (Anneyurs R/5-C), •A'hich reads as under:- "tetion Points - meeting of ofRcers of public sector banks and financial instituSons with JS (PRV) to review th©progress ofSpeciai recsuitiTisnt drive for SC/5T he'd on 6.7.1989. 1. Bank-wise position of back-iog as on 1.1.1989 v/asreviev.'ed. The figures of back-los as on 1.1.8S wii! be the base; subsequent vacancies vMch msght arise may be treated as current vacancies; The recruitmsnt of sub-staff woufd be compieted by ths banks before31.7.88. ^ 3. 4. 6. 8. 8. US(SCT) wouid pr^>are a miie-stone chart in bank-wise manner v/ithin a week If the offers of appointment are sent to the seiected candidates by the Sargeted dates, "rt inay be deemed that recruitment has been compteted for the purpose ofthis drive. Alist of nanres of persons setected and the number and date of appointment letter may be maintainsd; No excluswe date for promotion is contsmplated. Promotion exercise may be expedited jf they are due, but Shey are to cortinue according to the existing rutes and instructions. There is nospecia! retaxation for promotion; For the back-log clearance drive, ttie csiling of 50% on reservation doss not app!y;ttie ceiiing of1.5% on 8ie manpower strengtti could be reiaxed depending on ths merite of case of each bank, subject to future adjustmente in creation of posts; Af! covers/correspondsnce in regard tothis drive may be superecribed as "Specia! Drivs fcr Rscrui&nsnt ofSC/ST"; Fortnightiy report regarding the recruifment of sub-staff shoutd be submitted by the bante regularty alongwith fte action taken from time to time. The bank-'Aise posi'Uon v.'outd be compilsd on the coniputer in the Division; If the Empioyment Exchanges do not send the names Virithin a wsek, banks may advertise and recruit sub-staff in SC/ST category." A 11.The petitioner has chaltenged the /tetion Pointe aiso, aSer fiijng of the return by the respondents No. 1 and 2, by v/ay of amendment. which was ailowed by ftis Court. 12.The respondents No. 1 and 2. in compliance offlie memos passed by the Goyt. of India, notified backle^s of ewsGng vacancies and decided to hoid separate promoUon tsst for ctearing of the S.C. and S.T. baddog vida 26th June, 1989 (Annexure P/2). The respondenfs/Bank issued one more circular before that on 20 June. 1989 (/^inexure P/4) for promotion ofthe cierica! staffto the i-i^sy 8 posS of Junior Managsment Grade, aecordingly held. <?Artl^_l \^\fCtVvS~!. The examinations wsre 13.This Court vide order dated 2.2.1990, inifially stayedths issue of the appointment orders to the successftii candidates. Thereafter, vide order dated 2.5.1990, the order daSsd 2.2.1990-was fnodified to the extent that the respondente may issue appoint'nenS orders in respect of ths W> successful candidates only. Thereafter, on 6.8.1991 fhis Court passed the interim order that 'ln superesssten of all previous orders ofthis Court. the order ofstay is modified to ths extent that one post in the Scale of Junior Management shal! be kept vacant and &ie rest of vacancies be filted in subject to the decision of this petition. Thus, st appears that all the vacancies could not be filled up pursuant to ths examinations held in 1983. 14.The contenfon ofthe petitioner that if a!l the backlog of vacancies in S.C. and S.T. categories for promotion is filled up, the reservation may be up to 240%, is not correct on the facts. The reservation has to be seen on the basis of the tota! seats avaifable in a particuiar year. The vacancies arose or. eariier point of time which couid not be fiiied up, thus that v'acancies couki not be added. The tota! strength in i989 alone does not make it excessive reservation. .The pefctioner has not etected to chaiiengs either ftie promotion 15.Th poiicy w She memo dated 5 June, 1989 (Annaxure R/5), which provides for ciearance of backiog. T6.The contention of the petitioner to the effect that in one examination penciis, sharpeners, and erasere were allcwed to be {aken in fche examination hai! and in the subsequent examination the same was not permited to be taken in examinafion hall, is baseless, as it depends upon the expsrience in the past exatninatiQn, to issue ins{"uctions in subsequent examination, in ' order to avoid tnanipulafion eto. in the examination. On Uiis ground atone seiection process cannot bs quashed. 17.A constitutiona! Bench of Hon'bie the Supreme Court in M. Nagaraj & Ors.V. Unjon of india & Ors. (AiR 2037 S.C. 71) in para 117 has heid as under:- "117. As stated above, ArUcle 14 enabtes dassificaCon. A classification must be founded on inteiligibie differential which disttnguishes thoss ftat are grouped togeSier from others. The ciifferenSai must havs a rationa! relation to the object sought to be achieved by the iaw under chaiienge. In indra Sawhney an opinion was expressed by ftis Court vide para 802 that there is no coRstitofional or iegal bar to maksng of ciassification. Article 16(48) is aiso sn enabHng provjsion. !t seeks to make classiScation on fte basis of ths differentia! between current vacancies and carty-forward vacancies. fn the case of Articte 16(48) v/e must keep in mind that foliowng the judgment in R-K-Sabharwal the concept of post-based roster is introduced. Consequentiy, specific slote for OBC, SC and ST as weil as GC have to be maintained in the roster. For want of candidate in a partteular category the post may remain unfiilsd. Nonethsfess, Shat stot has to be fiited only by She spaciSsd catsgory. Therefors, by Articte 16(48) a ciassificaBon is made bstwesn current vacancies on one hand and carry-forA'ard/backios vacancies cn the otter hand. Arttete 16(4B) is a direct consequence of the judgment of this court in R.K.Sabharwa)8 by v^teh She concspt of post-based roster is introduced. Therefore, in our view Articles 16{4A) and 16(4B) form a coroposite part of the scheme envisaged. Therefors, in our vtew A'&'cies 16(4), ' 16(4A) and 16 (4B) together form part of the same scheme. As sSated abov's, Articles 16(4A) and 16(4B) are boft inspj,"sd by 10 observations of fte Supreme Court in Indra Sawhney" and R.K.Sabharwa) . They have nexus with Articies 17 and 46 of Uie ConstituSon. Therefors, we uphoid the dassification envissgsd by A'tides 16(4A) snd 16(4B). The impi^ned consfetutional amendments, therefore, do not obiiterats squalify." 18.Th The Hon'bto Supreme Court in M. Venkates'A'sriu & others Vs. Govt. of A.P. and others {(1996) 5 SCC167}, held that indisputabiy it is consfctutiona! obiigation to fi!! up backiog vacaneies on account <rf non-avaitebility of S.C./S.T. candidates. The test of justice and squiiy envisages that the reiaxation be given to a cfass of person or to an individua!. 19.The HoR'bte Supreme Court in Post Sraduate institute of Medfcal Education & Research, Chandjgarh and others Vs. K. L. Narasimhan and another {(1997) 6 SCC 283} in para 20, has held as under:- "20. ..........There te no prohjbffion on filling up backlog vacancies by special recruitment. The special recruitmsnt is not treated as routsne recruitment in any year. The bar of S0% would apply only when genera! recruit-nsnt is made on both to the genera! as well as ttie reserved candidates in rsspect of tfte current vacaneies. But 'w'hen specia! recruitment is made for setection and appointment of fche Dalite and Tribes, to the rsserved backlog vacancies, ttie nomiai run for recruitment is inappiicable. Accordingiy instead of conducting the exams for different categoriss ir> the manner indicated above, there is no consStutiona! prohibition on fiiling up ofthe backlog vacancies by a specia!, recroitment in a single go. Thus we hoid that the speciai recruitment is not vioiative of the principte of carry forward within one year, equaily, reservation v/ithin N)% quota is notvioiative............." 11 20. T . The observations v.ith regard to equi^ in admission, as held by the Hon'bte Supreme Court in She mattsr of Post Graduate instifaite of Medica! Education & Research, Chandigarti and ottsers (supra), has been overruled in the case of Dr Preeti Srivastava and another Vs. State of M.P. and others {(13^) 7 SCC 120 } by a Constitutiona! Bench of the Hon'ble Supreme Court. However, the finding of the Hcsn'ble Supreme Court, as stated above, does not stend Overruted in the case of Dr Preeti Srivastava and ano{her(supra) or thereafter. > 21-Recently in the case of M. Nagara] & Ors.(supra) the Hon'bie Supreme Court, in para 100, observed as under:- "100. fts stated above, Artteie 16 (4-B) lifts the 50% cap on carry-over vacandes (backi^ vacancies). The ceiling iimi't of 50% on current vacancies contmues to remain. In working out the carry'-foroard rute, t-A'o factore are required to be kept in mind, nameiy, unfilled vacanctes and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfiilsd vacancies; on the other hand, we have s fime spread over a number ofyears ovsr which unfiHsd vacancies are sought to be carried ovsr. Thsse two are alternating facfors and, therefore, jf fche ceiling limit on ttie carr/ over of unfiiled vacancies is removed, the other attemative tims factor comes in and in that event, ths time-scals has to be imposed in the iniersst of effsciency in administration as mandated by Artidfc, 335. !f the time-scale is not kept then poste wil! continue to remain vacant for years, whteh wouid be detrimentei to the administration. Therefore, in each case, the appropriate Government vfli! now havs to infroduce the time-cap depending upon the fect situation. What is stated hersinabove is borne out by She ser/ice ruies in some of the States whsre the cany-over ruie does not extend beyond three years." •-<_ .. <..•• t- 12 22. it is ctear from the dicta laid down by the Hon'bte Supreme Court in various cases, cited above, that cany-forward principle can be adopted for a iimited period, for 2 to 3 years, not forever, to disturb the resswation in the cadre. iri ttie present case tt is not clear asto whether al! seate, as notified were filed up. The mattsr relates to the examination heid in the year 1989. After a period of about 17 years, the indivklua! persons, who may directiy be affscted by the dscision of this Court, have not been impteaded as necessary parties. For Shat reason aiso this mafter deserves to be dismissed. 23.The petitioner has not chaitenged the vaiidity ofthe promotion poiicy i.e. memo dated 5t June, 1989, whsreby the respondenis/Bank were directsd to teke spscisl recruitment drive for ciearins backl^ of SC/ST for filling up of the vacancies in the reser»'ec!quota; Thus, fhe said office memoraRdum cannot be quashed in absencs of chailenge to the same. A!l the actions taken by' the respondsnts/Bank pureuant te the said offics inemo i's in accordance with the direction of the Govemment of India, •A'hich remains unchaitensed. lA.fts a resuit, for the reasons stated hereinabove, this petition is dismissed. No ordsr as to coste. Sd/- SatishK.Agnihotn Thakur ^•!