- (1.) By our judgment dated January 09, 2015, we had decided batch of appeals which were preferred by the Union of India as well as certain banks. In these appeals, the validity of the judgment of the High Court of Madras was questioned which held that in the matter of promotions in the officer grades, there shall be reservation provided for the officers belonging to the Scheduled Caste (SC) and Scheduled Tribe (ST) categories working in these banks. This decision of the High Court was predicated on the interpretation to the provisions of Office Memorandum (OM) dated August 13, 1997 issued by the Central Government, along with certain other connected Office Memoranda. It was concluded by the High Court that the aforesaid OM dated August 13, 1997 provides for such a reservation in favour of the SC/ST employees. The plea of the appellant banks was that the said OM does not make any provisions for reservation in respect of SC/ST employees.
(2.) The question, therefore, that needed determination by this Court was as to whether there is any reservation in the promotions from one officer grade/scale to higher grade/scale, when such promotions are to be made on selection basis, i.e. on merits. The position taken by the appellant banks was that there is no rule of reservation for promotion in Class-A (Class-I) to the post/scales having basic salary of more than Rs. 5,700 per month and OM dated August 13, 1997 at best provides only a concession in the manner officers belonging to SC/ST category are to be considered for promotion.
(3.) After hearing the counsel for the parties, judgment dated January 09, 2015 was rendered. Provisions of OM dated August 13, 1997 and other related Office Memoranda were considered by this Court in that judgment. This Court, after interpreting the said OM, came to the conclusion that this OM did not provide for any reservation. Operative portion of the judgment in arriving at the aforesaid conclusion reads as under: "26. While considering this question, we have to keep in mind that reservation policy of the Central Government is applicable to the appellant Banks. It is the common case of both the parties. In fact, as already noted above, there is a specific provision to this effect in the promotion policies framed by the appellant Banks. 27) Next thing which is to be kept in mind is the two office memoranda, one dated 1.11.1990 and the other dated 13.8.1997, which are referred to by the counsel for the parties. We have already reproduced the aforesaid two office memoranda. Insofar as, Office Memorandum dated 1.11.1990 is concerned, a bare reading of this provision would reflect the following two aspects: (a) In promotion by selection within Class-I (Group-A) post, the SC/ST candidates are to be given 'concession'. (b) This concession is available to those SC/ST employees who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which select list has to be drawn up. Thus, first requirement is that such SC/ST candidates who come within the zone of consideration for promotion are senior enough to be within the number of vacancies. Once they come within the aforesaid zone of consideration, they have to be included in the list, provided they are not considered unfit for promotion. It clearly follows from the above that once they come under the zone of consideration for promotion so as to be within the number of vacancies for which select list has to be drawn up, for such SC/ST employees the only embargo to deprive them of promotion is when they are found unfit for promotion. For other officers in general category, depending upon the rule of promotion, there may be much stricter criteria based on comparative merit or selection by merit, etc. However, in case of such senior enough SC/ST candidates, the criteria appears to be seniority, subject to fitness. (c) This OM specifically clears the doubt that the aforesaid provision is only a concession and not reservation in favour of SC/ST candidates, inasmuch as para 3 of the OM states that "It is hereby clarified that in promotion by selection within Group-A post, which carry ultimate salary of Rs. 5,700/- per month, there is no reservation". It is clear from the above that insofar as Office Memorandum dated 1.11.1990 is concerned, there was no provision for reservation made in favour of SC/ST candidates in promotion by selection within Group-A posts carrying an ultimate salary of Rs. 5,700 per month. 28) No doubt, this Office Memorandum was issued in the year 1990, that is much before amendment in Article 16 of the Constitution, which was carried out in the year 1995 by inserting Clause 4A. However, as already pointed out above, Clause 4A is an enabling provision which empowers the State to make reservations in the matter of promotions as well as in favour of SC/ST employees. There was no such provision till 1.11.1990 in the matter of promotion by selection within Group-A post which carry an ultimate salary of Rs. 5,700/- per month. 29) Having understood this, we come to Office Memorandum dated 13.8.1997 to find out as to whether this Memorandum makes any provision for reservations in the matter of promotion in favour of SC/ST employees, inasmuch as no other Office Memorandum or Circular or Rule, etc. is produced on record for this purpose. 30) We have already noted above that a nine Judge Bench decision of this Court in Indra Sawhney held that Clause 4 of Article 16 does not cover the cases of promotion, meaning thereby, as per the said clause no reservation in favour of SC/ST persons in the matter of promotions is permissible. It is to nullify the effect of this dicta in the said judgment that Clause 4A was inserted in Article 16 by Constitution's Seventy-Seventh Amendment with effect from 17- 06-1995. However, it is also a matter of record that in Indra Sawhney's case , this Court had also clarified that reservation for SC/STs in promotion would continue for a period of five years from 16-11-1992. What it meant was that if there is a provision of reservation made in the matter of promotions, notwithstanding the dicta in the said case that such a reservation is not permissible, those provisions were allowed to continue for a period of five years from 16-11-1992. Thereafter, before the expiry of five years, constitutional provision was incorporated in the form of Clause 4A by making provision for reservation in the matter of promotions as well. These facts are taken note of in first two paras of Office Memorandum dated 13-08-1997. Thereafter, in the 3rd para of the said Memorandum, it is provided: "3. In pursuance of Article 16(4A), it has been decided to continue the Reservation in promotion as at present, for the Scheduled Castes and the Scheduled Tribes in the services/posts under the Central Government beyond 15.11.1997 till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation whereafter, the reservation in promotion shall continue to maintain the representation to the extent of the prescribed percentages for the respective categories." 31) What is decided is to continue the reservation in promotion, which was prevalent at that time, for the SC/ST employees, which was to continue in terms of the judgment of this Court in Indra Sawhney till 15-11-1997, even beyond 15- 11-1997, till such time as the representation of each of the above two categories in each cadre reaches the prescribed percentages of reservation whereof. It is, thus, crystal clear from a bare reading of this para that the existing provision relating to reservation in promotion was allowed to continue beyond 15-11-1997. Thus, this Memorandum did not make any new provision for reservation in promotion in favour of SC/ST employees. 32) We have already noticed above that in matters of promotion within Group-A posts, which carry an ultimate salary of Rs. 5,700/- per month, there was no provision for any reservation. On a conjoint reading of these two Office Memorandums, in the absence of any other provision or Rule evidencing such a reservation in the matter of promotions, it cannot be said that there was reservation in promotion within Group-A posts upto the ultimate salary of Rs. 5,700/- per month. The High Court in the impugned judgment has gone by the lofty ideals enshrined in Articles 15 and 16 of the Constitution as well as the fact that in these Banks there is no adequate representation of SC/ST category of officers in Group-IV and above. That may be so. It can only provide justification for making a provision of this nature. However, in the absence of such a provision, same cannot be read by overstretching the language of Office Memorandum dated 13-08-1997. It is for the State to take stock of the ground realities and take a decision as to whether it is necessary to make provision for reservation in promotions to the aforesaid post as well.";