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Badole Versus Steel Authority of India Ltd. & Others -K.iSI jf- Post for pronouncement of the orders on the AFday of February, 2011 Sd/- Satish K. Agnihotri Judge ^ HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0.4160 OF 2004 Dr. S.M. Badole Versus Steel Authority of India Ltd. & Others (Writ petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Sandeep Dubey & Shri P.P. Sahu, Advocates for the petitioner. Dr. N.K. Shukla, Sr. Advocate with Shri B.D. Guru & Shri Rajendra Tripathi, Advocates forthe respondent No.1. ^l- (Delivered on this 2 \~ day of February, 2011 ) 1. By this petition, the petitioner seeks a direction to the respondent authorities to consider and promote the petitioner to ME-6 grade w.e.f. 30-6-2001 and put him at ME-7 grade at par with his batch mates ofjoining year 1980, with all consequential benefits. 2. The facts, in nutshell, as projected by the petitioner, for adjudication of the case, are that the petitioner belongs to Scheduled Caste community. The petitioner joined in the Bhilai Steel Plant (for short "the BSP"), which is a concern of the respondent No.1 - Steel Authority of India Limited (for short "the SAIL") on 7-4-1980 on the basis of the appointment order dated 19-3-1980 (Annexure - P/1) as Junior Medical Officer. During the course of service, the petitioner completed the diploma in ^ Anesthesiology for which one advance increment has been granted in favour ofthe petitioner. 3. According to the petitioner, the petitioner was denied promotion in the year 1988 in contravention to the company's promotion policy framed for SC/ST employees. Due to the aforesaid action on the part of the respondent authorities, the employees who have joined along with the petitioner were in ME-7 grade whereas the petitioner was promoted to ME-5 grade in the year 1997. As per the promotion policy meant for medical executives of the SAIL, the petitioner is entitled to promotion to ME-6 grade in the year 2001 i.e. on completion offour years service as ME-5 grade, but the said benefit has also not been granted to the petitioner in an illegal and arbitrary manner. Claim of the petitioner for his promotion to ME-6 grade w.e.f. 30-6-2001 is absolutelyjustified. 4. By letters dated 28-7-2004 (Annexure - P/12) and 30-9-2004 (Annexure - P/13) the petitioner sought a clarification with regard to the illegal and unjustified attitude of the respondent authorities, but the same did not yield any result. Due to the inaction on the part of the respondent authorities, juniors to the petitioner have been promoted. Earlier the petitioner preferred a writ petition before the High Couri: of Madhya Pradesh in the year 1991 challenging the promotionorders granted to his batch mates from E-3 to E-4 grade on 30-6-1991. Subsequently, the petitioner moved an application for withdrawal of the said writ petition. In spite of having sufficient vacancies for the reserved ^'~v-<: ,y*\^ •:i \'':-wy. t^ ^^9 v^ -'-J^/ v .-«y y0 category candidates, the respondent authorities are not granting the same to the petitioner. The said action of the respondent authorities is illegal, arbitrary and against the guidelines/ circulars/directives issued by the Government of India time and again. Thus, this petition. 5. Shri Dubey along with Shri Sahu, learned counsel appearing for the petitioner, would submit that the respondent company is a Public Sector Undertaking (for short "the PSU") and is governed by the constitutional provisions as well as the directions issued by the Government of India time and again to implement the constitutional provisions as enshrined in Article 335 of the Constitution of India. The candidate belonging to reserved category is entitled to reservation in cases of promotion also. 6. Shri Dubey would further submit that the contention raised by the respondent company in its return that reservation policy is not applicable in case of promotion to executive cadre is contrary to the facts and various circulars issued by the Government of India time to time. By O.M. No.36021/10/ 76-Estt. (SCT) dated 21-1-1977 (Annexure - P/6) the Government of India, Department of Personnel & Administrative Reforms, has directed to relax the qualifying standards in the case of SC/ST candidates. The respondent authorities framed a promotion policy (Annexure - P/8) for Medical Executives. Clause 15.0 of the policy provides for reservation for SCs/STs as per the Presidential Directives on the subject. -—f".^ ..1-»."< .^ f '-r .-f^t'; 7. Shri Dubey would also ?ubmit that the Government of India, Department of Personnel & Training by OM No.36012/23/ 96-Estt.(Res)-Vol.ll dated 3-10-2000 (Annexure - P/9) clearly directed for grant of relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of lower qualifying marks, lesser standards of evaluation that existed prior to 22-7-1997. The said OM was communicated by the Ministry of Heavy Industries & Public Enterprises on 11-10-2000 (Annexure - P/10) to all the PSUs for compliance. Accordingly, the SAIL by its communication dated 6-11-2000 (Annexure - P/11) directed the BSP for necessary action in accordance with the aforesaid memos. The BSP has neither made a provision for relaxation or concession in the matters of promotion for candidates belonging to SCs/STs. Admittedly, the petitioner belongs to SC community and the consideration of the petitioner for promotion to E-6 grade without complying with the directives of the Government of India based on the provisions of Article 335 of the Constitution of India is vitiated and the rejection of the candidature of the petitioner on the ground of general standard is also bad and illegal. 8. On the other hand, Dr. Shukla, learned senior counsel appearing with Shri Guru & Shri Tripathi, learned counsel for the respondent SAIL (BSP), would submit that the candidature of the petitioner was considered after having attained four years experience on the grade of E-5 in the year 2001 for promotion to E-6 grade and his case was rejected, taking into account the o n facts like performance, qualification and length of service as per the promotion policy of the company. 9. Dr. Shukla would further submit that the case of the petitioner was taken up for consideration for promotion in the years 2002, 2003 & 2004 also, but he was not found fit and, as such, the Departmental Promotion Committee (for short "the DPC") did not recommend, the candidature of the petitioner for promotion from E-5 grade to E-6 grade. The reservation policy is not applicable in case of promotion, as there is no examination wherein the qualifying standard can be relaxed. The reservation benefit is provided only for selection from group 'B' (non-executive cadre) to the posts at the lowest rung of group 'A', that is, to the grade E-0, not thereafter. The respondent company has reserved 15% posts for SCs and 7.5% of posts for STs up to the grade E-0 wherein the appointment is made by way of selection. Promotions to grades like E-3 and E-5 in the executive cadre are made on the basis of selection based on factors like performance, measured by the Average Credit Points (ACP), qualification, length of service and interview. The other candidates had better performance and were more senior to the petitioner. The list of doctors cited by the petitioner at Annexure - P/7 are more qualified than the petitioner, holding a post graduate degree in medicine in various areas of specialization whereas the petitioner holds only a diploma qualification in Anesthesiology. s"& io 10. Dr. Shukla would also submit that mere completion of the eligibility period of service in E-5 grade does not entitle an executive to promotion to E-6 grade, as the same is based on overall assessment of the candidates with respect to factors like performance, qualification and length of service. The OM dated 3-10-2000 is not at all applicable in case of promotions to E-6 grade. The allegations made by the petitioner that he was discriminated while granting promotions to the higher posts is totally baseless. Thus, the petitioner is not entitled to any relief and the petition deserves to be dismissed. 11. The question of law arising in the facts of the case is asto whether the petitioner, being a member of SC community, is entitled to benefit of provisions of Article 335 of the Constitution of India, wherein, it is clearly provided that for reservation in matters of promotion to any classes of service, there may be relaxation in qualifying marks in any examination or lowering the standards ofevaluation. 12. For ready reference, Article 335 of the Constitution of India is quoted below: "335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—Theclaims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State: Provided that nothing in this article shall prevent in making of any provision In favour of the members of the Scheduled Castes alnd the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State." Proviso to Article 335 was insert:ed by the Constitution (Eighty- second Amendment) Act, 2000, sec. 2 (w.e.f. 8-9-2000). 13. The Government of India pursuant to the enabling proviso to Article 335 of the Constitution decided to restore with immediate effect the relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of lower qualifying marks and also lesser standards of evaluation. 14. The OM No. 36012/23/96-Estt.(Res)-Vol.ll dated 3-10-2000 (Annexure - P/9) issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, Government of India reads as under: "No.36012/23/96-Estt.(Res.)Vol.ll Government of India Ministry of Personnel, Public Grievances & Pensions (Department of Personnel & Training) North Block, NewDelhj Dated: the 3rd October, 2000 OFFICE MEMORANDUM » Subject: Reservation in promotion - Prescription of lower qualifying Marks/lesser standard of evaluation. The undersigned is directed to refer to Department of Personnel STraining's O.M.No.36012/23/96-Estt.(Res) dated 22nd July, 1997 vide which various instructions of the Government providing for lower qualifying marks/lesser standards of evaluation in matters of promotion for candidates belonging to the Scheduled Castes and Scheduled Tribes had been withdrawn, on the basis of the ^-s^^ '>--.•; 05 Supreme Court's judgement in the case of S. Vinod Kumar Vs. Union of India. 2. The undersigned is furi:her directed to say that the matter has been reviewed, consequent to which the following proviso to Article 335 has been incorporated in the Constitution by the Constitution (Eighty-Second Amendment) Act, 2000: "Provided that nothing in this Article shall prevent in making of any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State." 3. In pursuance ofthe enabling proviso ofArticle 335 of the Constitution, it has now been decided to restore, with immediate effect, the relaxations/concessions in matters of promotion for candidates belonging to SCs/STs by way of lower qualifying marks, lesser standards of evaluation that existed prior to 22.7.1997 and as contained in the instructions issued by the Department of Personneland Training from time to time including OM No.8/12/69-Estt.(SCT) dated 23.12.1970, No.36021/10/76-Estt.(SCT) dated 21.1.1977 and para 6.3.2 of the DPC guidelines contained in Department of Personnel and Training's O.M. No.22011/5/86-Estt.(D) dated 10.4.1989. In other words, the effect of these instructions would be that the Department of Personnel and Training's OM No.36012/23/96-Estt.(Res) dated 22nd July, 1997 becomes inoperative from the date of issue ofthis OM. 4. These orders shall take effect in respect of selections to be made on or after the date of issue of this OM and selections finalised earlier shall not be disturbed. 5. All Ministries/Departments are requested to toring these instructions also to the notice of their Attached/Subordinate Offices and Autonomous Bodies Public Sector Undertakings under their control for compliance. Sd/- (J. Kumar) Deputy Secretary to the Government of India TeleNo.3011797" 0£.' 15. Accordingly, the Ministry of Heavy Industries & Public Enterprises, Department of Public Enterprises, Government of India, by memo dated 11-10-2000 (Annexure - P/10) directed all the PSUs including the SAIL to comply with the OM dated 3-10-2000 as aforestated. 16. Memo dated 11-1 0-2000 reads as under: "No.6(4)/98-DPE (SC/ST Cell) Government of India Ministry of Heavy Industries and Public Enterprises Department of Public Enterprises New Delhi dated 11th October, 2000 OFFICE MEMORANDUM Subject: Reservation in promotion - Prescription of lower qualifying marks/lesser standard of evgluation. The undersigned is directed to forward herewith a copy of DOPT'S OM No. 36012/23/96-Estt.(Res)-Vol.ll dated 3-10-2000 on the subject mentioned above and to request that all Administrative Ministries/Departments may kindly bring the contents of the OM under reference to the notice of all Public Sector Undertakings under their administrative control for information and compliance. Sd/- (C.C. Unnikrishnan) Deputy Secretary to Govt, of India" 17. The SAIL by memo dated 6-11-2000 (Annexure - P/11) in turn directed the BSP to initiate necessary action. The memo dated 6-11-2000 reads as under: "STEEL AUTHORIT/ OF INDIA LIMITED (A Government of India Enterprises) NO.PER/IR&W/MISC/99 6th November, 2000 Shri G. Upadhyay Executive Director (P&A) Bhilai Steel Plant Bhilai- 490001 10 \'Q ^ 18. Subject: Reservation in promotion - Prescription of lower qualifying marks/lesser standard ofevaluation. Dear Sir, Please find enclosed a copy of letter No. 6(4)/98-DPE (SC/ST Cell) dated 11th October, 2000 along with endosures of DOPT, on the above subject, received from Dy. Secretary, Ministry of heavy industries & Public Enterprises, Department of Public enterprises for information and necessary action at your end. Thanking you, Yours faithfully, Sd/- (Dhananjay Pandey) Sr. Manager (P-IR&W)" Further promotion policy for medical executives (Annexure - P/8) provides for reservation for SCs/STs in clause 15.0, which reads as under: "15.0 RESERVATION FOR SCs/STs: Reservation for SCs/STs shall be provided as per the Presidential Directives on the subject." 19. In view of foregoing, the contention of Dr. Shukla, learned senior counsel appearing for the respondent SAIL (BSP), that reservation is not applicable for SC/ST candidates in the matter of promotion is without any basis, as there is no distinction either in proviso to Article 335 ofthe Constitution or in the various OMs issued by the Government of India and the SAIL between promotions in non-executive or executive grades i.e. from grade E-5 to E-6. ?'•'•<& ,,.,..-^,'; "^ •>"'ii 'li. j w^KS '^-^ 11 'IJ 20. Second contention of Dr. Shukla that since there is no qualifying examination and, as such, the same would not be applicable in case of consideration for promotion from grade E-5 to E-6 is also misconceived and misplaced, as the proviso to Article 335, which is an enabting provision clearly provides for lowering the standards of evaluation that includes performance, qualification and length of service. Article 335 of the Constitution and OMs clearly provide for lesser standards of evaluation apart from the relaxation in qualifying marks in any examination. 21. On consideration of the submission of the learned counsel appearing for the parties, on perusal of the pleadings raised in the petition as well as in the return and other documents, it is cleariy established that the respondent authorities have not provided for lesser standards of evaluation i.e. performance, qualification and length of service. It appears that the petitioner was treated at par with the standard of the general category candidates. Thus, the exercise of selection process, whereynder, the petitioner was not selected, appears to have been done by not lowering the standards of evaluation i.e. in performance, qualification and length of service and, as such, the same is vitiated and un-constitutional. 22. A constitution bench of the Supreme Court in M. Nagaraj and Others v. Union of India and Others , raised the question as under: 1 (2006)83cc212 12 Q 23. "41. Applying the above test, we have to consider the word 'reservation' in the context of Article 16 (4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election Case." Finally the Supreme Court observed as under: "99. This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this court in Vinod Kumar which took the view that relaxation in matters of reservation in promotion was not permissible underArticle 16 (4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16 (4-A)." In Suraj Bhan Meena and Another v. State of Rajasthan and Others2, relied on by the learned counsel appearing for the respondent/SAIL, the question involved was how to determine reservation of post in promotion, the Supreme Court observed as under: "66. The position after the decision in M. Nagaraj's case is that (2011)1 SCC467 'i"-^ ^^ .-^- 13 't) reservation of posts in promotion is dependent on the inadequacy of representation of members of the Scheduled Castes and Scheduled Tribes and Backward Classes and subject to the condition of ascertaining as to whether such reservation was at all required." 24. Thus, the decision in Suray Bhan Meena is flot applicable to the facts of the present case, as the case of the respondent SAIL is that there is no provision for reservationin promotion, which has been negated by the Supreme Court in M. Nagaraj . 25. The candidature of the petitioner was considered for promotion from E-5 to E-6 grade in the year 2001 and the according to the respondents he was not found fit in the years 2001, 2002,2003 & 2004 also. The petitioner has not challenged the non-selection immediately after DPC took place in the year 2001, but the cause of action in the case is recurring and, as such, the petition cannot be rejected on the ground of delay and laches. Since the petitioner has filed this petition in the year 2004 also, the case of the petitioner may be considered as on September, 2004 in the light of above observations and as per the well settled cpnstitutional provisions and in view of the well settled principles of law laid down by the Supreme Court in the aforesaid decisions. It is qrdered, accordingly. 26. In the result, the writ petition is allowed to the above extent. No grder dgto costs. Gowri Sd/- Satish K. Agnihotri Judge