General Insurance Corporation Ltd. and others vs All India Insurance Sc/st Employees Action Committee

A.R. Lakshmanan, J.—All India Insurance SC/ST Employees'' Action Committee which is a registered body under the Societies Act, is the

petitioner in the writ ptition and respondent in the writ appeal. The Writ petition was filed for a mandamus direct ing the respondents/the General

Insurance Corporation of India, Bombay and four others, implement the Reservation Policy in promtions in Class-I category for SC and ST

Officers t in the respondents Insurance companies in accordance to the Art. 16(4A) of the Constitution c of India.

The above prayer was amended by an order of this Court dated August 8, 1997 in t W.M.P. No. 19252/96 as follows :

Writ of Mandamus or any other appropriate Writ order or Direction in the nature of a Writ, directing the respondents to reserve the post for

SCIST employees in Class-I category in the Respondents 2 to 5 insurance companies in accordance to Official Memoranclums issued by the

Government of India, dated December 23, 1974, February 25, 1976, September 21, 1988, April 25, 1989, February 8, 1990, June 27, 1990,

August 19, 1993 and July 27, 1995 and direct the Respondents to discharge the public duty enshrined in Article 46 of the Constitution of India

and pass such further or other orders...

The parties to this action will be referred to a petitioners and respondents with reference to their rank in the writ petition. The case of the

petitioners in short are as follows : The SC/ST employees in the respondent companies are entitled to get 22 % as reservation tor promotion (18

% for SC and 4 % for ST). According to the petitioners, the respondent insurance corporations in spite of their repeated requests deliberately

ignoring the directions and instructions and also the requests and thereby causing hardship and inconvenience to the employees. It is also alleged

that the respondent corporations though used to declare the vacancies and specify the number of posts reserved for the SC/ST against the total

declared promotional vacancies, have now not declared the promotional vacancies etc., even after the constitutional 77th Amendment by which the

reservation in the natter of promotion to any class or classes of post in the service in favour of the SC/ST were ntroduced. BY their letter dated

November 14, 1995, the action committee, after referring to he 77th Amendment of the Constitution mending Art. 16 paving way for reservation

to SC/ST officers in Class-I promotions, requested the Chairman of the General Insurance Corporation of India Bombay to impl ment to

reservation policy in promotion within Class-I aacategory for SC/ST Officers in the future promotional ezercise as per the above amendment. They

further requested the Chairman to honour the constitutional rights and to issue instructions to all the subsidiaries to implement the reservation policy

to clear the back-log in the institution. Again, by their communication dated April 18, 1996, the attention of the Managing Director (personnel) of

the General Insurance Corporation of India was drawn to the 77th Amendment of the Constitution. In the said letter it is stated that if the

respondent corporation has not received suitable instruction from the Government by that time on the reservation policy for Class-I Officers, the

action committee may be informed so as to enable them to pursue the matter with the approprite authorities. Thus, it is seen, the whole basis for the

claim of the petitioners is in pursuance of the 77th Amendment of the Constitution amending Article 16(4A). Inthis context, we may usefully extract

art. 16 as follows :

(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated

against in respect of, any employment or office under the State.

(3) Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment for appointment

to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that

State or union territory, prior to such employment or appointment.

(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward

class of citizens which, in the opinion of the State, is not adequately represented in the Services under the State.

(4A) 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.

(5) Nothing in this Article shall affect the operation of any law which provides that the is incumbent of an office in connection with the affairs of any

religious or denomination institution or any number of the governing body thereof shall be a person professing a particular religion or belonging to a

particular denomination.

Article - 16 provides that there shall be equality of opportunity in matters relating to employment or appointment to any office under the State.

Article 16(4) provides that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or ports in

favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the services under the State. Clause

(4A) may be noticed in the Pnt context. The said clause (4A) was inserted by the Constitution (77th Amendment) Act, 1995 with effect from June

17, 1995 and the said clause (4A) enables the State in making any provision for reservation in matters of promotion to any class or classes of post

in the service of the State in favour of SC and ST, which, in the opinion of the State, are not adequately represented in the services under the State.

Clause (4) only permits the reservation for backward class of citizens who are not in the opinion of the State, adequately represented in the

services of the State. It does not permit reservation to any person who does not belong to the category of backward classes, nor does it enable the

State to reserve posts on communal lines. Clause (4) of Art. 16 is wide enough to include not only reservation but also relaxation of so standard at

competitive examinations, for member of backward classes, or preferences or exemptions which may be regarded as ancillary to reservation. The

grievance of the petitioner appears to be that their claim for reservation for promotion pursuant to the amendment to Art. 16(4A) even though they

are eligible for promotion, has not been considered and because of the non-consideration of their lawful claim, they will be deprived of their long

awaited to promotional opportunities. The above is the gist of the claim made by the petitioners.

The above writ petition was resisted by the respondent coporations. According to thein, is there is no reservation policy for promotion to Class

I officers for SCIST as alleged in the writ petition. The writ petition is based on a niis-apprehension that instructions have been issued b the Central

Government for reservation for SC ao and ST officers in Class I category. It is therefore specifically stated that no instruction or directions had

been issued by the Central Govermnent in regard to reservation for SCIST officers in Class I category. By virtue of the 77th Constitutional

Amendment, Clause (4A) has been introduced in Art. 16 enabling the State from making provision for reservation in matters of promotion to any

class or classes of posts in service under the State in favour of SC/ST which in the opinion of the State are not adequately represented in the

services under the State. Therefore, the State has to be subjectively satisfied on objective materials that SC/ST are not adequately represented in

officers category in insurance companies. Thereafter, the State has to instruct the respondents to follow reservation policy for SC/ST in Class I

category. It is %ecifically stated that the respondents till now ve not received any such instructions from the Government of India. They have also

denied the averments made in the affidavit that the respondents are deliberately not considering the claim for reservation in promotional posts. It is

stated that the respondents who are Government companies, has been following the directions issued by the Government of India in regard to the

categories class II/III and IV employees.The maintainability of the writ petition has also been raised as a point in the counter affidavit. With regard

to the prayer for a writ of mandamus to direct the respondents to implement the reservation policy, it is replied that there cannot be any direction to

the respondent companies to comply With a policy or guideline, which is not in existence and furthermore as the respondent companies have also

not failed to adhere to any s existing rule or guideline. Therefore, the respondents contended that the prayer of the petitioner to issue

''mandamus''cannot be considered or granted and the same deserves to be rejected.

In the light of the above pleadings, the following three questions would emerge for our consideration :

Whether any direction to the respondent is companies/ Corporations, to comply with the policy or guideline which is not in existence can be

issued in the present writ petition ?

In the absence of any proof as to the respondent companies/corporations having failed to adhere to any existing rules or guidelines, whether

such a prayer can be maintained ?

Whether the writ petition is maintainable in law ?

We have carefully gone through the affidavit, counter affidavit and other documents annexed, to the typed set and have given our anxious

consideration for the questions at issue. With regard to the prayer in the main writ petition (as amended), we are of the view that seeking a

mandamus directing the respondents to implement the reservation policy for promotion of Class-I category for SC/ST Officers in the respondent

corporations under Art. 16(4A) of the Constitution of India, cannot at all be countenanced, since there is no reservationyolicy of promoting any

Class-I officers of SC/ST as alleged in the writ petition. The writ petition, in our opinion, is based on a misapprehension that instruction has been

issued by the Central Government for reservation for SC/ST persons in the Class-I category. It is the categorical stand of the respondents that no

such instruction has been issued by the Central Government. By virtue of the 77th Amendment of the Constitution, clause (4A) above noticed in

Art. 16 enabling the State from making provisions for reservation in matters of promotion to any class or classes of posts in the services under the

State in favour of the SCIST which, in the opinion of the s State, are not adequately represented in the service under the State. Therefore, the

condition precedent for issuing memorandum by the State is that the State has to be subjectively satisfied on objective materials that SC/ST are not

lo adequately represented in officers category in Insurance Corporations. Thereafter, the State has to instruct the respondents to follow reservation

policy for SCIST in Class-I category, But till now no such instruction has been issued by is the Government of India. It is also the specific stand of

the respondent corporations that they are strictly following and complying with the reservation policy issued by the Government of India in regard

to categories Class II, III and IV employees, The promotion within Class I category is made by the process of selection and there is no reservation

for promotion by selection within Class-I. However, SC/ST 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 unfit for promotion.

This is commonly known as protection clause for 30 SCIST in the matter of promotion in Class-I category. We are therefore of the view that the

77th Amendment as it does not provide for reservation for SCIST officers in Class-I category which is filled by the process of selection and the

reservation policy has to be announced by the Government in the light of the amended Art. 16(4A). In exercise of the powers under Art. 338 of

the Constitution, the National Commission for SC/ST, constituted under the said Article has informed the Liaison Officer of the General Insurance

Company that by virtue of the Constitution (77th Amendment) there is scope for introduction of reservation for SCIST in posts filled by promotion

within Group-A provided the Government of India issue suitable instruction in this regard. The above reply was sent in response to the letter dated

December 14, 1995 written by the Liaison Officer of the first respondent company, Mumbai. The above communication makes it clear that the

writ petitioners cannot claim reservation in Class I posts filed by promotion unless suitable instructions are issuer by the Government of India.

Mr. M. Venkatachalapathy, learned senior counsel appearing for the petitioners seeks reservation to the extent of 22 % on behalf of the

petitioners for promotion in Class-I category for SCIST officers. We have carefully gone through the averments in the writ petition. The alleged

grievance in the writ petition is that the, reservation for promotion for SC/ST officers within Ciass-I category is not given. The reed pursuant to

1972 and their promotion poli-is ic received trom time to time from the Union of India. We failed to understand as to why the Union of India,

which is a necessary party to the writ petition has not been impleaded as a party/ respondent in the writ petition. The prayer seeking reservation to

the extent of 22% for promotions in Class-I category cannot at all be considered as of now since there is no such reservation and what is relied on

by the petitioners is only Art. 16(4A) of the Constitution. Art. 16(4A) is only an enabling provision for the State to make any provision for.

reservation in matters of promotion to any class or classes of posts. The respondent, have also submitted in their counter in W.M.P. No. 11626/96

in W.P. No. 8166/96 that subsequent to the introduction of Art. 16(4A) by the 77th Amendment to the Constitution on July 17, 1995, the Union

of India has thereafter not made any rovision for reservation in promotions for SC/ST officers to any post in respect of Class-I category. In the

said counter, it is also reiterated that the promotions within the Class-I category are made by the process of selection and the SCIST officers who

are senior enough in the zone of consideration for promotion so as to be within the number vacancies for which the select list has to be drawn up

are considered provided they are not unfit for promotion. This protection for SC/ST officers is provided under the guidelines and administrative

instructions relating to the promotion policy for officers and the same is also in line with the Brochure provisions.

As rightly pointed out by the learned senior counsel for the respondent Corporations, they are under the care and control of the Central

Government through the General Insurance Corporation of India, the first respondent herein and the Central Government is the body competent to

advise the respondent companies on such matters. In as much as the union of India have not made any provision for reservation in matters of

promotion for the posts in Class-I cadre in the services of the respondent companies, the writ petitioners, at the best can redress their grievance

from the union India only. This apart, the respondents have not received any directives from the administrative ministry for as providing reservation

for SC/ST officers for promotions within class-I posts. The promotion of officers in Class-I is strictly done in accordance with the provisions

contained in the promotion policy for officers. It also provides for Promotion Committees., viz., Lower Management Services Committee and

Middle Management Services Committee in each of these committees a SC/ST representative is necessarily a member of the Committee. The

Promotion ts Committees select officers for promotions and forward a list of such officers to the appointing authority for effecting promotion. Thus,

the SC/ST representative in each Promotion Cornmime protects and safeguards the interests of 30 SC/ST officers in promotion.

Besides, the, nidelina and administrative instructions relating to the promotion policy for officers also contains a specific provision (Para VI) for

SC/ST officers, which provides as follows :

For promotion to the cadre of Deputy Manager and below, such of the SC/ST officers who are senior enough in the zone of consideration for

promotion so as to be within the number of vacancies would be included in the list provided they are not considered unfit for promotion...

It is urged on behalf of the respondents that they have been strictly giving effect to this provision commonly known as the ''Protection clause''. This

concession to SC/ST officers is being ex-so tended without any breach to SC/ST officers in matters of promotion within Class-I category.

M. M. Venkatachalapathy, learned senior counsel for the petitioners submitted that as per the Directive Principles contained in Art. 46 of the

Constitution, it is the obligation on the part of the State to promote with special care the Educational and economic interests of the weaker sections

of the people, and, in particular, of the Scheduled Castes and the Scheduled bribes, and shall protect them from social in justice and all forms of

exploitation. It is further submitted that assuming that there are no eirculars providing reservation in the categories in question, then it is open to this

Court to enforce the directive principles contained in Article 46 by issuing a direction to make reservation in the post in question. He also further

referred to the recent decision of the Supreme Court which held that the directive principles are enforceable and therefore, this Court must interfere

and issue suitable directions to protect the interests of the petitioners. As already noticed, Art. 46 of the Constitution deals with the promotion of

educational and economical interests : SC and ST and other weaker sections. This Article merely declares the objective of the State, and Re other

directives, does not confer any enforceable right. The Supreme Court oberved that there are millions of other citizens apart from the SCs & STs

who also belong to the weaker sections and directed the Central Government to draw up a guideline for this purpose. In Indra Sawhney case

1992 Supp. (3) SCC 217 the Supreme Court has clarified that the expression ""weaker sections"" of the people s wider than the expression

backward class"") of citizens, which is only a part of the weaker sections. Backward classes comprise only those, Yhich are socially or

economically backward lie term weaker section does not necessarily refer to a group or a class. It connotes all sections of the society which are

rendered weaker rue to various causes, viz., poverty, natural ca-amity or physical handicap. As already noticed, the respondents have not received

any Directions from administrative ministry for proaiding reservation for SCIST officers for promotion within Class-I posts. We have already

ioticed, there cannot be any direction to the respondent companies to comply with a policy or underline, which is not in existence and further mrore

as the respondent companies have also not failed to adhere to any existing rule or guideline.

Mr. M. Venkatachalapathy, learned senior counsel, in support of his contention, placed strong reliance on the decision rgorted in Ashok

Kumar Gupta and Another v. State of U. P. and Ashok Kumar Gupta and Another Vs. State of U.P. and Others, which was decided by three

Hon''ble Judges of the Supreme Court. Learned Senior counsel submitted that the right of promotion is a fundamental right and that promotion of

social justice is a fundamental right and equally economic empowerment is a fundamental right to the disadvantaged. The above case was one

where different set of officers filed the Writ Petition challenging the promotion of the Respondents 2 to 10 therein have sought a Writ of Mandamus

to restrain the State of U. P. from giving effect to the promotions given to the Respondents 2 to 10 and also sought a writ of certiorari to quash the

orders dated March 12, 1981 appointing the 2nd respondent as Superintending Engineer on ad hoc basis and on regular basis w.e.f . April 10,

1991 as temporary Chief Engineer by order dated November 7, 1994 and orders promoting few others as Superintending Engineers. By

proceedings dated March 8, 1973, the Government had provided percentage in reservation for Dalits and Tribes at 18% and 2% respectively in

all services or posts to he filled in by promotion through process of selection either by direct recruitment or by competitive examination or limited

departmental examinations. The said percentage has been increased to 21 % for Dalits and retained at 2 % for the Tribes under the U.P. Services

(Reservation for Schedule Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 that came into force with effect from December 11,

1993. When the Respondents 2 to 10 were a considered and recruited as promotees from the cadre of Executive Engineer to that of

Superintending Engineer and above cadres on the basis of merit, the appellant., before the Supreme Court came to challenge their appointments. It

was contended in the High Court and reiterated by their learned counsel that in Indra Sawhney v. Union oflndia known as Mandal case eight of 50

the nine Judges, per majority held that appointment by promotion under Articles 16(1) and 16(4) of the Constitution is unconstitutional. They

placed strong reliance on the judgment of Jeevan Reddy. I., speaking for three Judges and Sawant,J., for himself in that behalf. It was also

contended that having declared the promotions under Articles 16(1) and 16(4) of the Constitution as unconstitutional, overruling the judgment of a

Bench of five Judges of the Supreme Court in The General Manager, Southern Railway Vs. Rangachari, to the same being not correct in law. It

was also urged that having declared the reservation in promotion as unconstitutional, it is void ab initio under Article 13(2) of the Constitution, and

that the promotion made to Respondents 2 to 10 is at all levels, therefore, is unconstitutional. The operation of the unconstitutional direction cannot

be postponed by prospective overruling of Rangachari ratio.

The question considered in Ashok Kumar Gupta v. State of U. P. (supra) was that die direction to operate the scheme of reservation in

promotion for five years is inconsistent with and in derogation of the substantive right to equality guaranteed under Articles 14 and 16(1).

Therefore, the Scheme is unconstitutional and that the prospective operation of Mandal case amounts tojudicial legislation and amounts to

temporary amendment to the Constitution Or an addition in the form of a proviso to Article 16(1) or 16(4) of the Constitution. It was further

contended that the exercise of Art. 142 to postpone the operation of the judgment after 5 years amounts to perpetration of void action and is

voidable of the appellants'' fundamental rights guaranteed under Articles 14 and 16(1) of the Constitution.

In the above case, the reservation in promotions in all the services or posts under the State of Uttar Pradesh was in vogue from March 1973.

The legislature of U.P. reiterated the need for continuance of the reservation not only in direct recruitment but also its continuance, as mentioned in

the U.P. Act, which came into force w.e.f. December 11, 1993. The judgment in Mandal case was delivered on November 16, 1992. All the

promotions made prior to that date were held valid in Mandal case. The, impugned judgment of the High Court was rendered on August 4, 1993

while the Constitution (77th Amendment) Act of 1995 came into force on June 17, 1995. Thepromotions of the respondents came to he made

between November 17, 1992 and December 11, 1993 ie., within five years of the directions in para 860 (8) in Mandal case and agreed to by

other learned Judges. Therefore, it was contended that the promotions to and appointment of the private respondents is constitutional. The

Supreme Court on a consideration of the above submissions made by both the parties held that the direction in Manm Case postponing the

operation of the judgment of reservation in promotions for a period of five is years is a part of the scheme of judicial review eing an innovative

device to meet out justice to the Dalits and Tribes giving breathing time to the executive to bring about suitable legislative measures, if they so

desired and if no action was taken by amending the law, on expiry of five years, the Judgment in Manm case would become operative. Thereafter

reservation in promotion would he unconstitutional which 1 invalidity was remedied . As already held, this being one of the tools of judicial

craftsmanship adopted by exercising the power under Article 142, which is available only to Supreme Court, the directions given are not violative

of rights under Article 14 read with Article 16(1), nor ultra vires the power nor void, not incom patible or inconsistent with the doctrine of equality

enshrined under Article 14 read with Article 16(1) of the Constitution. On the other hand, the power was exercised by the Supreme Court under

Article 142 read with Article 32 and the direction postponing the operation of the decision for a period of five years is a law of the land under

Article 141. In the concluding portion, the Supreme Court held that the U.P. Act saves the existing policy of reservation in promotions, and the

judgment in Mandal case saves the promotions already made, and even excess promotions remained undisturbed and the law became operative

only from the date of the Judgment. Therefore, the Supreme Court held that promotions of the respondents are legal and valid and they do not

become void or unconstitutional as contended by the appellants and dismissed the writ petition accordingly.

We are of the view that the above Judgment cited by Mr. M. Venkatachalapathy, learned senior counsel for the petitioners as no application to

the facts and circumstances of the case on hand and is distinguishable on facts. Because, the question which arose for our consideration in the case

on hand is with reference to the promotion of the petitioners as per the reservation policy and after the introduction of Article 16(4A) on June 17,

1995 which is not for consideration in the above said judgment.

We have already considered the arguments of Mr. A. L. Somayaji, learned senior counsel for the respondents, with reference to the non

impleading of the Central Government as party/ respondent in the writ petition and the nonexistence of any direction to the respondent companies

to comply with the policy or guidelines pursuant to the 77th Amendment to the Constitution and also the other contentions. We need now only to

consider two judgments cited by Mr. A. L. Somayaji, learned senior counsel in order to appreciate his legal submissions. The first is the decision

reported in National Federation of S.B.I. and Others, etc. Vs. Union of India and Others, . Inthatease, the precise nature and character of the

concession provided to Scheduled Castes and Scheduled Tribes in the matter of promotions within Class I in the service of the public sector banks

fell for consideration in the batch of writ petitions before the Supreme Court and the above judgment was rendered by three Hon''ble Judges of the

Supreme Court. The writ petitions were filed by Associations of Scheduled Castes'' and Scheduled Tribes'' employees working in several public

sector banks. The reliefs sought for in all the writ petitions are broadly identical. On December 31, 1977 ''the Ministry of Finance, Department of

Economic Affairs (Banking Division),. 40 Government of India, addressed a letter to all the Nationalised Banks as well as to the State Bank of

India and its subsidiary banks intimating them that the Ministry has since decided to extend the scheme of reservation in promotions also. ''Re letter

stated that according to the Reserve Bank of India, it will be difficult to formulate a scheme uniformly applicable to all the banks though the basic

policy of reservation can always be enunciated. On May 30, 198 1, the Ministry of Finance, Department of Economic Affairs (Banking Division),

Government of India issued a letter to all the Chairmen and Managing Directors of Nationalised Banks as well as to the Chairman, State Bank of

India and the Managing Directors of seven subsidiary banks of State Bank of India on the subject of ""reservation for Scheduled Castes/Scheduled

Tribes in promotion"". Another communication was also sent on November 7, 1983 from the io Ministry of Finance. The writ petitioners placed

strong reliance on the decision reported in Bihar State Harijan Kalyan Parishad Vs. Union of India and Others, and submitted that the said decision

clearly lays down is the rule of reservation. It is also contended on behalf of the SCIST Association that the decision taken would not be consistent

with the principle underlying clauses (1) and 4 of Article 16 the Constitution of India and that the interpretation placed by him is not only

reasonable but consistent with the general reservation policy of the Government of India and serves to ensure the vacancies reserved for SC/ STs

to them, even though in competition with open category candidates they may lage behind. ''Me Supreme Court rejected the said argument and held

that they are unable to agree with the learned counsel for the appellant. The Supreme Court held that in so far as promotions within Class-I are 30

concerned with which alone the Memorandum dated March 26, 1970 deals there are no orders of the Government of India applying the rule of

reservation, and those earlier memorandums provide for reservation in Classes-II, III and IV but not for promotion to Class-I and not at any rate

to promotions within Class-I. Nor does the Memorandum dated March 26, 1970 provide for such reservation. The Supreme Court further

observes that while the rule of reservation jo is made applicable to the lower categories, viz., Classes-II, III and IV, no such reservation was

thought advisable in the matter of promotions within Class-I. ''Re Supreme Court has categorically observed that the rule of reservation does not

apply to promotions within Class-I ie., promotions to be made on the basis of selection to posts which carry an ultimate salary of Rs. 2250/- per

month or less in the revised scale, but a concession in terms of para-2 of the. Memorandum dated March 26, 1970 is provided in that behalf.

In Bihar State Hatijan Kalyan Padshad case, the attack therein was upon two letters, one (supra) issued by the Ministry of Steel and c Mines

dated April 8, 1982 addressed to the Chairman of the Steel Authority of India Limited and the other dated August 19, 1982 from the Steel

Authority of India Limited to the Chief Personnel Manager, Bokaro Steel Plant respectively, It was contended that the said letters were

inconsistent with and contrary to Para 9 of the Brochure. In the above case, the Supreme Court has observed thus :

Be that as it may, what is relevant is that i neither the Presidential Directive referred to is i in Bihar State Haryan Kalyan Padshad (supra) nor the

office Memorandums referred to above nor for that matter Para-9 of the Brochure provide for reservation in the matter of promotions within

Class-I.We must, therefore, say with great respect that the assumption made in me judgment in Bihar State Hadjan Kalyan arishad (supra) that the

rule of reservation applies to promotions with Class-I does not appear to be correct. We may also mention that para 9.1 and 9.2 as set out in the

Brochure (seventh edition) do not say anything different.

For the above reasons, the Supreme Court held that the decision in Bihar State Hatijan Kalyan Parishad (supra) cannot be said to lay down the

law correctly in so far as it purports to hold that the rule of reservation applies in the matter of promotions within Class-I. The review petition

preferred against the aforesaid decision was disposed of on January 21, 1987. Reliance was also placed on subsequent decision of the Supreme

Court in Syndicate Bank Scheduled Castes and Scheduled Tribes Employees Association (Regd.), through its General Secretary, K.S. Badlia and

Others Vs. Union of India (UOI), through its Additional Secretary, Ministry of Finance (Deptt. of Economic Affairs) Banking Division and Others,

. Following the decision Bihar State Harijan Kalyan Parishad case (supra), it was held in this decision that in matter of promotions within Class-I

(Group-A) posts, rule of reservation applies though subject to the procedure prescribed in Para-9 of the Brochure.

A review petition was moved by the respondents in the said writ petition relying particularly upon the words ""there is no reservation "" occurring in

Para 9.2. (a) of the Brochure. Reliance was also placed by the respondents on a decision of the Supreme Court in All India Bank of Baroda

Scheduled Castes and Scheduled Tribes Employees Association v. Union ofindia & Others W.P. No. 1594/87 decided on August 18, 1988 in

which it was held that promotions by selection within Class I to be effected on the basis of selection, shall he effected in accordance with the rules

contained in para 9.2 of the Brochure. The review petition was dismissed holding that the decision dated August 10, 1990 was based upon the

material placed before them. It was also observed that the failure of the parties to bring a particular fact to the notice of the Court furnishes no

ground for review.

The decision in Nation Federation of SBI & Others v. Union of India (supra) specifically over rules the decision in Bihar State Harijan Kalyan

Parishad case(supra) and the Syndicate Bank Scheduled Castev Scheduled Tribes Employee Association case (supra). In the concluding portion,

the Supreme Court has observed in paras 30 & 31 as follows :

We may reiterate that both according to Shri Rajinder fflachhar as well as learned counsel for the respondents, there is no specific order, rule

or Memorandum applying the rule of reservation in favour of Scheduled Castes/scheduled Tribes in the matter of promotions within Class-I

services. In the absence of such reservation, the forty-point roster prepared by the Govermnent of India cannot be applied or followed, for the

simple reason that the roster prepared merely in irnplementation of and to carry out the rule of reservation. ''Mere can be no roster in the absence

of rule of reservation. If the rule of reservation is not made applicable to a particular appointment or promotion, there can be no question of

following the forty-point roster therefore. The forty-point roster itself does not provide for reservation. It merely specifies places for reserved

categories in accordance with and consistent with the rule of reservation already made.

For the above reasons, we hold that in the matter of promotion by selection to posts within Class-1 which carry an ultimate salary of Rs.

2250/- in the revised scale of pay per month or less, there is no reservation in favour of Scheduled Castes/ Scheduled Tribes but they are entitled

to the concession contained in Para 2 of the Office Memoranduin dated March 26, 1970 issued by the Ministry of Home Affairs. The concession

is that those Scheduled Castes, Scheduled Tribes 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 provided they are not considered unfit for promotion. (This rule has been explained in the body of the

judgis ment by giving an illustration, which it is not necessary to repeat here). The position of such candidates included in the select list would,

however, be the same as is assigned to them by the Departmental Promotion Committee on the basis of their record of services. The said

candidates would not be entitled for the purpose of the said selection, one grading higher than the grading otherwise assignable to them on the basis

of their record of service. This is also the purport of para-9 of the Brochure in so far as it deals with promotions within Class-I.

Another decision cited by the learned senior counsel for the respondent Corporations reported in Commissioner of Commercial Taxes, A.P.

Hyderabad and another Vs. G. Sethumadhava Rao and others, can also be usefully looked into in the present context. That case, the Supreme

Court analyses as to why Art. 16(4A) was introduced in the Contitution. After referring to few judgments of the Supreme Court, in para Supreme

Court has observed as follows :

The Parliament by amending the Constitution and introducing Art. 16(4A) has removed the base as interpreted by this Court in Indra Sawhney''s

case(supra) that appointment does not include promotion by making express provisions that when the State forms an opinion that members of the

Scheduled Castes or Scheduled Tribes are not adequately represented in any service or to any class or classes of base in the service under ill, the

State, the State is empowered to make provisions for reservation by promotion. Article 16(1) does not prevent the State from making such a

provision. In Indra Sawheny''s case(supra) also, this Court reiterated that riot to equality under Articles 16(1) is equally applicable to the

Scheduled Castes and Scheduled Tribes and Article 16(4) is not an exception. Reservation is part of the scheme of equality under Article 16(1).

Article 16(4A) would establish that the interpretation put UD in Rangachari''s, no and Karamchari Sangh s (supra) cases received parliamentary

approval. It would thus be clear that as a principle of law, rule of reservation can apply not only to initial recruitment but also in promotions where

the State is of the opinion that Scheduled Castes and Scheduled Tribes are not adequately represented in promotional posts in class or classes of

service under the State. It is seen that Rule 22 of the general Rules provides reservation for appointment By direct recruitment. By Constitutional

parameters and interpretation of law by this Court, reservation under Articles 141, 16(1) and 16(4) would include reservation in promotion as

well.

The appeal was accordingly allowed. The Supreme Court, in the concluding portion held that in view of the stand taken by the Tribunal that Rule

22 would apply only for direct recruitment and not for appointment by promotion, as illegal and the appeal filed by the State of Andhra Pradesh

was accordingly allowed.

We have already referred to Article 16(4A) and the said Article deals with matters of promotion to any class or classes of posts in the service

under the State. It shall not prevent the State from making any provision for reservation in matters of promotion. In implementing the provision of

Art. 16(4A), the opinion of the State that the Scheduled Castes and Scheduled Tribes are not adequately represented in the services under the

State is a condition precedent. As on date and as referred to in the main writ petition and not denied by the petitioners, the Central Government

has not so far advised the respondent corporations by any memorandum or by any letter on such matters. ''Merefore, we are unable to accept the

arguments of Mr. M. Venkatachalapathy, learned senior counsel for the petitioners, that the members of the petitioner association are entitled to be

considered for promotion as per Article 16(4A) of the Constitution and that the petitioners have a fundamental right for consideration of their

names for further promotion. We are unable to agree with the said contention. The Action Committee of the petitioner in their representation have

only requested the first respondent corporation to implement the reservation policy in promotion within Class-I category SC/ST officers in the

future promotional exeriscise as per the amendment by Article 16(4A) of the Constitution. Irrespective of the specific stand taken by them in

November 1995, the petitioners have now approached this Court with some imaginary grievances.

As regards the maintainability of the writ petition, we are in entire agreement with the arguments of the learned senior counsel appearing for the

respondents. As rightly pointed out by him, there cannot be any direction to the respondent corporations to comply with the policy or guidelines

which is not in existence. Therefore, the prayer of the petitioners to issue a Writ of Mandanws or as prayed for in the amended prayer, cannot at

all be considered or granted and the same deserves to be rejected. Therefore, for all the foregoing reasons, we answer on question No. 1 that no

such direction can be issued to the respondent corporations to comply with the policy or guidelines which is not in existence and on question No. 2

that such a prayer of petitioners cannot at all be maintained, since no policy or guideline is in existence, there is no question of failure to adhere to

the rules and the guidelines. Question Nos. 1 & 2 are thus answered accordingly. On question No. 3 we answer that the writ petition is not

maintainable in law. However, in the circumstances of the case there will be no order as to costs.

Now coming to the Writ Appeal, the same has been preferred against an interim order passed by M. Ali Mohamed, J., dated July 16, 1996

and made in WMP No. 11626 of 1996 in W.P. No. 8166 of 1996, issuing certain directions pending disposal of the main writ petition. As

contended by the learned senior counsel appearing for the respondent corporations in Writ Petition that the learned single Judge ought to have

noticed that the Amendment introduced to Article 16 of the Constitution by way of 77 the Amendment does not give any right to the members of

the petitioner association in the matter of promotion, unless and until the State takes the opinion that SCs/STs are not adequately represented in the

services of the State and makes a provision for reservation in the matter of promotion to any class or classes of posts.Admittedly, in exercise of

powers under Clause (4A) of Article 16 of the Constitution, no direction or instruction has been issued by the Government in the matter of

promotions to various posts in Class-I in the respondent corporations. Therefore, the members of the writ Qtitioners association cannot claim any

right see force in the contention of the learned senior counsel appearing for the appellants in the Writ Appeal. However, now that the main Writ

Petition itself is disposed finally, there is no need to discuss about the verasity of the argument or correctness of the order of the learned single

Judge. In view of the opinion now taken 5 by this Division Bench on the maintainability of the writ Petition and on merits, no further order is

necessary in the Writ Appeal and the same is accordingly disposed of. Consequently, the interim or er passed by the learned single Judge in

WMP. No. 11626/96 is vacated. In view of the disposal of the Writ Appeal CM P No. 12337 of 1996 is dismissed. No costs.

M. Karpagavinayagam, J.

I fully agree.