SBCWP No.1668/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.1668/1994. UCO Bank SC/ST Employees Council Jaipur & Ors. Vs. Chairman-cum-Managing Director, UCO Bank Calcutta & Anr. Date of Order:- February 4, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad for the petitioner. Smt.Anita Agrawal on behalf of Shri G.K. Garg for the respondents. ****** Reportable BY THE COURT:- This writ petition has been filed with the prayer that action of the UCO Bank in not providing to the candidates of SC/ST seeking more than 16.5 marks in the written examination from clerical cadre to next higher cadre of Junior Management Grade-I on the basis of merit-cum- seniority with the further prayer that UCO Bank be directed to declare certain candidates entitled to promotion and accordingly, promote them in terms of settlement dated 13/4/1988. SBCWP No.1668/94. 2 2) Shri Rajendra Prasad, learned counsel for petitioner argued that respondents have not adhered to minimum prescribed marks in the written examination as per settlement dated 13/4/1988. Learned counsel referred to clause 3.6.1 of the said settlement specially, note 3 therebelow and the instructions subsequently issued by the respondents to provide for extended zone of consideration. Note-3 provides that candiates, who pass the written test will be ranked on the basis of marks obtained in the written test and those who rank within the number equivalent to three times the vacancy known as 'consideration zone' will be considered for promotion. In the case of SC and ST candidates, the Government has framed guidelines to fill up the vacancies reserved for them, which are, as under:- “Selection against the vacancies reserved for Scheduled Caste and Scheduled Tribes will be made only from amongst those Scheduled Caste & Scheduled Tribe Officers who are within normal Zone of consideration. While adequate number of SC/ST candidates is not available within the normal field of choice, it may be extended to five times the number of vacancies and SC/ST candidates (not any other) coming within the extended field of choice should also be considered against the vacancies reserved for them.” SBCWP No.1668/94. 3 3) Learned counsel for the petitioner argued that respondents had 244 vacancies for merit-cum-seniority for promotion against the quota of merit against seniority and accordingly therefrom they initially prepared three times zone, when sufficient number of SC/ST candidates were not available, they prepared five times zone which came only to 1215. Out of the regular vacancies of ST, 10 posts were transferred to SC quota and thus they promoted 62 SC candidates, with double the number of candidates who could qualify the extended zone of consideration only 6 ST candidates were promoted. It was argued that respondents have in making promotions ultimately taken into consideration 78 backlogue vacancies whereas such number of vacancies were not added initially to over all number of 243 vacancies in the quota of merit-cum-seniority. If that had been done, zone of five times would have been extended to 1605 thus entitling all such candidates who secured 16.5 marks, which is the pass marks in the written examination as per the requirement of Note-2 below clause 3.6.1 of the settlement. Learned counsel argued that as a result of faulty application of the aforesaid clause of the settlement and the note thereunder SBCWP No.1668/94. 4 as modified, even the candidate securing 19 marks, could not come within the extended zone and thus large number of SC/ST candidates, who were otherwise eligible to secure promotion, were deprived of promotion. 4) Mrs.Anita Agrawal, learned counsel appearing for the respondents has opposed the writ petition and submitted that in the merit- cum-seniority only 244 candidates passed the written examination. In the normal course, zone is required to be prepared three times the vacancies according to which 729 candidates would fall within the zone but the candidates who had equal marks were additionally added in the zone of consideration, thus cut of 22.33% marks was obtained in the written examination. Only 18 SC and 3 ST candidates could qualify whereas 71l general candidates could qualify. Therefore, modified instructions were issued extending the zone upto five times and it thus went down upto 1215 out of which, 62 SC candidates qualified whereas there were 6 ST candidates. Respondents had only 52 posts for SC category. They inter- changed 10 posts out of 17 backlogue posts of ST to SC. In all 62 SC candidates who qualified, were promoted whereas only 6 ST qualified and all SBCWP No.1668/94. 5 those were promoted. Learned counsel submitted that according to clause 3.6.3 of the settlement promotions under seniority channel were required to be completed first enabling the successful candidates under merit-cum-seniority quota therefore contention of the petitioner that the candidates who were promoted in seniority channel should have been first considered for promotion in in merit-cum-seniority channel and zone of consideration should be extended five times inclusive of backlogues vacancies, cannot be accepted. 5) Having heard learned counsel for the parties and perused the record, I find that the decision of this matter hinges upon the interpretation of Note-3 below clause 3.6.1 of the Settlement relating to promotion in merit- cum-seniority channel which for the facility of reference is quoted hereinbelow:- “3) Candidates who pass the test will be ranked on the basis of marks obtained in the written test and those who shall rank within the number equivalent to three times the vacancies declared for this channel will be considered for promotion on the basis of aggregate marks secured in the written test, service and qualification. The candidates who secure the same number of marks in the aggregate shall be ranked on the basis of inter-se seniority. The SBCWP No.1668/94. 6 candidates securing rank on the basis of aggregate marks as above within the number of vacancies set apart for this channel would be empannelled and declared promoted.” 6) Modified instructions for extention of the zone of consideration upto five times provided as under:- “Selection against the vacancies reserved for Scheduled Caste and Scheduled Tribes will be made only from amongst those Scheduled Caste & Scheduled Tribe Officers who are within normal Zone of consideration. While adequate number of SC/ST candidates is not available within the normal field of choice, it may be extended to five times the number of vacancies and SC/ST candidates (not any other) coming within the extended field of choice should also be considered against the vacancies reserved for them.” 7) It would be evident from the modified instructions referred to above that though normally, selection against the vacancies reserved for SC/ST is made only from candidates of SC/ST who are within the normal zone of consideration. When however adequate number of SC/ST candidates are not available within the normal field, zone may be extended to five times of vacancies of SC/ST and no other candidates coming within the extended zone of consideration, could be considered against the vacancies reserved for them. If the respondents actually SBCWP No.1668/94. 7 had backlog vacancies and they promoted some of the candidates even against backlog vacancies, the effect would be that the vacancies, which did not form the basis for preparation of the zone of consideration were made use of for making actual promotions. In other words, if they had such vacancies added to over all available number of vacancies for promotion in merit-cum-seniority channel, the zone would have definitely undergone an increase. It can be explained by aiding backlog vacancies of 93 (78 SC and 15 ST) to the over all number of 243 vacancies on merit cum seniority channel, out of which 33 were those who came within the zone by extending it to at five times, total of the zone would come to 1680 thus entitling all such SC/ST candidates who secured 16.5 marks and more but less than 22.33 marks in the written examination to claim consideration of promotion against the quota of SC/ST. Respondents, in my considered view, have misapplied the rule of reservation and misinterpreted the intention of the Government of India expressed in its various circulars regarding reservation and lost sight of the purpose of exceeding the zone upto five times by modifying the relevant clause. SBCWP No.1668/94. 8 8) In the result, writ petition is allowed. Respondents are directed to undertake the exercise of preparing zone of consideration by adding 93 backlog vacancies of SC and ST to over all number of 243 vacancies and accordingly arrive at fresh cut off mark to consider the candidates of SC and ST for promotion. Candidature of all such SC/ST candidates who are able to secure more marks than such cut off mark be considered afresh for promotion against the vacancies including backlog vacancies in accordance with law. Compliance of the judgment shall be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ) J. anil