Bindu v. State Bank of Travancore — 1998 DIGILAW 160 (KER)

Judgment :- C.S. Rajan, J. The petitioners are working in the clerical cadre of the first respondent-Bank. Promotions to the post of Junior Manager Grade Scale-I (hereinafter referred to as the 'JMGS-I') in the Bank are governed by the various provisions contained in Exhibit P-1 promotion policy. The employees who have completed 8 years of service but are not above 55 years of age are included in Group 'A' to which petitioners 1 to 3 belong. Promotions from this group to the JMGS-I are effected on the basis of the result of the written test and interview. The employees who have completed 4 years of service but are not above 35 years of age are included to Group 'B' to which petitioners 4 and 5 belong. Promotions from these groups are effected by conducting a written test and interview. In 1996 vacancies were notified by the first respondent-Bank for promotion to the post of JMGS-I. Petitioners 1 to 3 appeared for the written test and came out successful. They were also interviewed and became eligible to be appointed to the management cadre. 80% of the vacancies in the cadre of JMGS-I is earmarked for in-service candidates and 20% by direct recruitment. Out of the above vacancies 22.5% is reserved for SC/ST candidates. According to the promotion policy, if there are no sufficient SC/ST candidates to fill up those vacancies in a particular year the said vacancies should be de-reserved and should be carried forward the next recruitment year. According to the petitioners, in 1995 there were 27 vacancies reserved for SC/ ST candidates in Group 'A' which could not be filled up due to dearth of eligible candidates. Similarly in Group 'B' also 9 vacancies could not be filled up for want of eligible SC/ST candidates. There were 26 vacancies in 1996 which also could not be filled up for want of eligible candidates from SC/ST. Therefore, the petitioner request in this Original Petition is to de-reserve the 26 reserved vacancies in the post of JMGS-I which arose in 1996 and carry forward the same to the succeeding year 1997 and to fill up the above vacancies by promoting general merit candidates. The further prayer is to de-reserve the 35 vacancies reserved for SC/ST candidates which arose in 1997 and to carry forward the same to 1998 for the purpose of filling up general merit candidates. 2. The further prayer is to de-reserve the 35 vacancies reserved for SC/ST candidates which arose in 1997 and to carry forward the same to 1998 for the purpose of filling up general merit candidates. 2. A counter affidavit has been filed on behalf of the respondents. Along with the counter affidavit Ext. R1 (a), office memorandum dated 8.2.1991 of the Government of India has been produced. According to Ext. R1 (a), if no suitable reserved candidate is available, it is open to the appointing authority to keep the post vacant or to dereserve the reserved vacancy and fill up the same by appointing a general candidate. In respect of the reserved vacancies, the Bank has not taken any decision to de-reserve the vacancies. Therefore, the reserved vacancies are kept vacant to be filed up by special promotion process. The Bank proposes to conduct a special eligibility test for the in-. service candidates who belong to SC/ ST. It is further contended that the petitioners have no manner of right or entitlement to claim that they should be appointed to the posts specifically reserved for SC/ST candidates. 3. Sri. N. Nandakumara Menon, learned counsel for the petitioners submitted that the Bank was legally bound and has statutory duty to follow the principle of dereservation laid down in Ext. P-2 rules framed by the Government of India. In the matter of promotion to the post of JMGS-I it is further contended that the petitioners, who have come out successful both in the written test and in the interview are losing their legitimate right for promotion to the post of JMGS-I due to the inaction of the first respondent in not de-reserving the reserved vacancies and in not carrying forward the same to the succeeding year. 4. But Sri. Pathrose Mathai, learned counsel appearing for the respondents submitted that the petitioners have no right to demand that they must be appointed in the de-reserved vacancies. It is also argued that the first respondent is competent to resort to the process of a second selection by conducting the eligibility test for the in-service candidates who belonged to SC/ST. The learned counsel relied on one of the earliest decision of the Supreme Court reported in S.S. Sharma v. Union of India (AIR 1981 SC 588). It is also argued that the first respondent is competent to resort to the process of a second selection by conducting the eligibility test for the in-service candidates who belonged to SC/ST. The learned counsel relied on one of the earliest decision of the Supreme Court reported in S.S. Sharma v. Union of India (AIR 1981 SC 588). The legality of conducting a limited departmental competitive examination for the members of Scheduled Castes and Scheduled Tribes as well as the lack of right on the part of the general merit candidates to request for the de-reservation of the vacancies has been considered in the above decision. Dealing with the above two contentions the Supreme Court observed as follows: "9. That takes us then to the validity of sub-r. (2a) of R.12 of the Central Secretariat Service Rules and the Regulations of 1979. Their validity is challenged by the petitioners on the ground that they violate Art.14,15 and 16 of the Constitution inasmuch as they result in two avenues of promotion for Government servants belonging to the Scheduled Castes and Scheduled Tribes while a single avenue only of promotion is available to other Government servants. Ex facie, the contention must fail. The two avenues of promotion pointed out by learned counsel for the petitioners consist in, one, the preparation of a list of officers falling within the field of selection, both of the general category as well as members of Scheduled Castes and Scheduled Tribes and their selection on the basis of the principles laid down and, two the selection of candidates of Scheduled Castes and Scheduled Tribes consequent upon the limited departmental competitive examination. While considering this submission we must remember that resort to the limited departmental competitive examination is not simultaneous with the preparation of the list embodying the field of selection. The question of holding the examination arises only, as sub-r.(2a) of R.12 declares. When the reserved vacancies cannot be filled because eligible officers from the Scheduled Castes and Scheduled Tribes are not available through the original process. Resort to the further process arises because the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. Resort to the further process arises because the constitutional mandate in favour of Scheduled Castes and Scheduled Tribes because reserved vacancies must be filled if that is possible. The petitioners could complain if such a need arose in respect of general category vacancies and was not supplied. It has not been shown that the general category vacancies have remained unfilled for want of suitable candidates. No need has arisen of being compelled to resort to a further process of selection in regard to such vacancies. In such circumstances, it is not possible to see how a legitimate complaint can be laid by the petitioners on the basis alleged before us. It has been urged that the decision of the Government not to de-reserve the twenty seven vacancies is vitiated by legal malice. Having regard to the considerations to which we have adverted, we see no substance in that submission." 5. Other decisions of the Supreme Court rendered recently were also brought to my notice by the learned Standing Counsel. In the ruling reported in State of Punjab v. G.S, Gill ((1997) 6 SCC 129) the Supreme Court categorically held that the direction or mandamus to de-reserve the post was clearly unconstitutional because no mandamus could be issued to disobey the law or prohibit the authorities from discharging the functions. It was also held in the above case that the question whether certain vacancies should be de-reserved or not is a matter falling primarily within the administrative discretion of the Government. There is no right for the general candidates to seek filling up of the vacancies belonging to the reserved category and to insist on de-reservation of reserved vacancies. 6. The above question was dealt with again by the Supreme Court in ruling reported in P.G. I, of Medical Education & Research v. K.L. Narasimhan ((1997) 6 SCC 283) in the following words: "16. The question therefore, is whether the Court can give direction to throw open the reserved vacancies to the general candidates by a writ of mandamus or direction, as the case may be. The contention of Sri. P.P. Rao is that since the Institute had already apprised the Ministry of Health and Family Welfare of the need for dereservation of the posts relating to scientific research and no action has since been taken, the Court is empowered to issue directions. The contention of Sri. P.P. Rao is that since the Institute had already apprised the Ministry of Health and Family Welfare of the need for dereservation of the posts relating to scientific research and no action has since been taken, the Court is empowered to issue directions. In support thereof he placed reliance on the judgment of this court in Comptroller and Auditor General of India v. K.S. Jagannathan. We find it difficult to give acceptance to the contention. The same question had arisen in 5". S. Sharma v. Union of India wherein a Bench of three judges of this Court had considered the question whether the Court could give direction to dereserve the post. This Court pointed out that so long as the recruitment by a limited departmental competitive examination for the Dalits and Tribes could be adopted and followed, ie., one of the methods to make recruitment, a mandamus cannot be issued by the court to direct the Government to dereserve the post. CAG case is a reverse case. Therein, rules of reservation was applicable to all the Departments since the CAG had not applied the relaxed standard in conducting the examination and making recruitment on the basis thereof; the Division Bench of the High Court had directed to relax the standard and make recruitment of the Dalits and Tribes by promotion. This Court had upheld the judgment and held that when the authorities have a power coupled with discretion, they have also a duty to implement the policy of the Government. At p. 39, this Court had pointed out that in order to prevent injustice resulting in injustice to the parties concerned, the court may itself pass an order or give directions which the Government or the competent authority should have passed or given had it properly and lawfully exercised its discretion. Far from helping the appellants, the ratio goes in favour of the reserved candidates. This question was considered in G.S. Gill case. Therein, the High Court has given direction to dereserve the post and to throw open the same to the general candidates. While considering the ratio in CAG case and other decisions, this Court had pointed out that the Court cannot give mandamus to disobey the Constitution and principle of reservation enshrined in Arts.15(4) and 16; nor is the Court competent to direct the authorities to disobey the constitutional mandate. While considering the ratio in CAG case and other decisions, this Court had pointed out that the Court cannot give mandamus to disobey the Constitution and principle of reservation enshrined in Arts.15(4) and 16; nor is the Court competent to direct the authorities to disobey the constitutional mandate. It would therefore, be manifestly illegal to seek a mandamus or direction; nor would the court be justified to issue such mandamus or direction to the appropriate Government to dereserve the vacancy. It is common knowledge that selections are not objectively being made to select the candidates belonging to the Dalits and Tribes to fill up the vacancies reserved for them though qualified candidates are available to be promoted/ appointed, with a view to see that reserved vacancies are not filled up and the same are passed off as eligible candidates being not available so as to ensure that carry forward vacancies either exceed 50% of the accumulated total vacancies or that selection goes beyond three years so as to make the Government dereserve the vacancies. It would, therefore, be clear that the authorities should implement the executive/ legislative/ constitutional policy or principle in their true spirit, honestly and sincerely to effectuate the policy; no mandamus or direction should be issued to dereserve the carry-forward vacancies reserved for appointment of the Dalits and Tribes nor should direction be given to fill up the reserved posts with general candidates. Thus, it is settled legal position that application of roster to single post cadre and appointment by promotion to carry-forward post is valid and constitutional. With a view to give adequate representation in public service to reserved category candidates, the opportunity given to them is not violative of Art.14 and 16(1) of the Constitution; nor is it unconstitutional". 7. In view of the categorical pronouncements of the Supreme Court on this matter it is not possible for this Court to acceed the request of the petitioners in this Original Petition to direct the first respondent Bank to dereserve the reserved vacancies and to fill up the above vacancies by appointing candidates from among general merit candidates. The Original Petition fails and is dismissed.