Full Text
IN THE SUPREME COURT OF INDIA
REVIEW PETITION (CIVIL) NO. 891 OF 2015
IN
CIVIL APPEAL NO. 209 OF 2015
CHAIRMAN & MANAGING DIRECTOR
CENTRAL BANK OF INDIA & ORS. …..PETITIONERS
WELFARE ASSOCIATION & ORS.
…..RESPONDENTS
W I T H
REVIEW PETITION (CIVIL) NO. 837 OF 2015
IN
CIVIL APPEAL NO. 213 OF 2015
W I T H
REVIEW PETITION (CIVIL) NO. 892 OF 2015
IN
CIVIL APPEAL NO. 211 OF 2015
W I T H
REVIEW PETITION (CIVIL) NO. 903 OF 2015
IN
CIVIL APPEAL NO. 210 OF 2015
W I T H
REVIEW PETITION (CIVIL) NO. 1104 OF 2015
IN
CIVIL APPEAL NO. 212 OF 2015
Review Petition (Civil) No. 891/2015 & Ors.
Page 2
A N D
REVIEW PETITION (CIVIL) NO. 2131 OF 2015
IN
CIVIL APPEAL NO. 209 OF 2015
JUDGMENT
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
Page 3 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 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:
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 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 (supra) 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 (supra), 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 Page 6 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:
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 (supra) 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 ₹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 Page 7 promotion within Group-A posts upto the ultimate salary of 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.”
4) As pointed out above, since the main issue that had arisen for consideration stood answered in favour of the appellant banks, in normal course, the appeals should have been allowed reversing the judgment dated December 09, 2009 rendered by the High Court. However, during the course of the arguments, the respondent employees had produced copy of OM dated November 08, 2004 issued by the Department of Enterprises, as per which the salary limit of 5,700 mentioned in the OM dated ₹ August 13, 1997, was treated as equivalent to 18,300 on the ₹ implementation of the Fifth Central Pay Commission Report in respect of those public sector undertakings which were following the Central Pay pattern and in the case of public sector undertakings following Industrial Dearness Allowance (IDA) pattern, monetary ceiling was fixed as 20,800. On that basis, ₹ Page 8 this Court proceeded further to discuss that aspect with the observation that the High Court had failed to consider the same. Discussing this aspect, this Court held that even when there was no policy of reservation for the post carrying pay-scale of more than 5,700 per month, the reservation was there in respect of ₹ the post carrying basic pay of upto 5,700 per month and with the ₹ implementation of the Fifth Central Pay Commission Report, it would follow that such reservation was applicable to the post carrying pay-scale of 18,300. On that basis, it was held that ₹ since pay-scale of the posts upto Scale VI was 18,300, insofar ₹ as promotions from Scale I to Scale II, Scale II to Scale III, Scale III to Scale IV, Scale IV to Scale V and Scale V to Scale VI are concerned, reservation is to be provided. It is this direction/portion of the judgment in respect of which the instant review petitions are filed. Thus, it would be apt to reproduce the discussion touching upon this aspect in the judgment. The same reads as under:
6) Notice was issued to the respondent-employees/associations in these review petitions. They have filed their counter affidavits to the review petitions. We have heard counsel for all the parties before us. It was also pleaded by the counsel on either side that since the issue raised in the review petitions has bearing on the merits of the case, the issue raised itself be finally decided. Page 11
7) Mr. Mukul Rohatgi, learned Attorney General appearing for the Union of India, submitted that a fundamental error, which was an error apparent on the face of the record, had crept in in paragraph 34 of the judgment wherein it was observed that reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than 5,700 (pre-revised). He pointed out ₹ that in the earlier portion of the same paragraph (which is reproduced and highlighted above), this Court had reiterated, after detailed discussion, that there is no reservation in promotion by selection in Group-A posts which carry an ultimate salary of 5,700 per month and in such cases it is only the concession that ₹ applies. He further submitted that in such a situation, OM dated November 08, 2005 issued by the Department of Enterprises, that too at the fag end of the hearing of the appeals, had no relevance at all. He further submitted that promotions were only up to Scale VI in these banks as the hierarchical structure would reveal that Scale VII and above were in fact Board level posts which are filled up by the Government and not by the Departmental Promotion Committee of the concerned banks. In this manner, he argued that in spite of deciding the main issue against the respondents, because of the aforesaid error in the judgment, the said benefit Page 12 was still bestowed by giving reservations to the officers belonging to SC/ST category from Scale I to Scale VI. He further demonstrated that in these banks, there were four categories of employees, namely, sub-staff (Class IV), clerical, officers and Board level posts. The promotions were provided from sub-staff to clerical as well as from clerical to junior management grade (Scale-I). However, there was no further promotion from Scale-I upward. The learned Attorney General further argued that the entire case of the respondent employees was based on OM dated August 13, 1997 and relying upon the same, the respondent employees had argued that this OM provides for reservation. However, this precise contention of the employees was specifically turned down and repelled by this Court by interpreting the said OM to mean that it does not provide for any reservation, but only gives certain concessions to the employees belonging to SC/ST categories while considering their cases for promotion. As a consequence, no further discussion was required.
8) We find adequate force in the aforesaid submission of the learned Attorney General. We have already reproduced those paragraphs of the judgment, i.e. paragraph Nos. 26 to 32, wherein after interpreting OM dated August 13, 1997, it is categorically Page 13 held that this OM does not provide for any reservation. This is so stated in the opening lines of paragraph 34 as well by emphasizing that there is no reservation in promotion by selection within Group-A posts, which carry an ultimate salary of 5,700 per ₹ month and it is only concession that applies. This conclusion is followed with the observation that contention of the banks in this behalf has been accepted. In spite thereof, in the very next line of paragraph 34, it is observed: “34... Significantly, what follows is that reservation is provided in promotion by selection qua those posts which carry an ultimate salary of less than 5,700 per month (pre-revised).” ₹
9) It is clearly an error on the face of the record inasmuch as no such consequence follows. In fact, the aforesaid quoted portion is directly in conflict with not only the earlier portion of paragraph 34, but the entire conclusion on the issue on which there is a detailed discussion from paragraph Nos. 26 to 32 and even in earlier paragraphs of the judgment. It is this error, which is apparent on the face of the record, viz. the reservation is provided in promotion by selection respect of posts carrying salary of less than 5,700 per month, that has led to further error that such ₹ reservation in the matter of promotion is applicable from Scale I upward up to Scale VI. What constitutes an error apparent on the Page 14 face of the record is explained in State of Rajasthan & Anr. v. Surendra Mohnot & Ors.1, with the aid of an earlier judgment, in the following manner:
10) The Court also made the following pertinent observations:
Page 15
11) Learned counsel appearing for the respondent employees could not dispute the aforesaid error having been occurred. It is for this reason, the main argument on the part of the counsel for the respondents was that insofar as Union of India is concerned, review petition was not maintainable as it had not challenged the judgment of the High Court. It was also argued that the review petition filed by banks was against the public policy as there was no adequate representation of SC/ST employees in the higher posts and by not providing such a reservation, the Government was failing to subscribe to the Constitutional spirit behind reservation provisions. Counsel also endeavoured to argue that the appeals which were filed against the judgment of the High Court themselves were not maintainable as a circular was issued by the Union of India impressing upon the banks to follow the judgment of the High Court.
12) The aforesaid arguments of learned counsel for the respondent employees fail to cut any ice as there are not germane to the issue with which the Court is concerned with in these review Page 16 petitions. Even if the review petition filed by the Union of India is to be discarded, that would be immaterial inasmuch as the banks, which were the appellants, have also filed the review petition on the same grounds and, therefore, this Court is necessarily called upon to decide the issue at hand. Further, when an error is pointed out and the Court also finds that there is an error apparent on the face of the record, it would not shy away from correcting that error.
13) We would be candid in our remarks that once an error is found in the order/judgment, which is apparent on the face of record and meets the test of review jurisdiction as laid down in Order XLVII Rule (1) of the Supreme Court Rules, 2013 read with Order XLVII Rule (1) of the Code of Civil Procedure, 1908, there is no reason to feel hesitant in accepting such a mistake and rectify the same. In fact, the reason for such a frank admission is to ensure that this mind of patent error from the record is removed which led to a wrong conclusion and consequently wrong is also remedied. For adopting such a course of action, the Court is guided by the doctrine of ex debito justitiae as well as the fundamental principal of the administration of justice that no one should suffer because of a mistake of the Court. These principles are discussed Page 17 elaborately, though in a different context, in A.R. Antulay v. R.S. Nayak[2].
14) We would also like to reproduce the following observations in S. Nagaraj v. State of Karnataka[3]:
3 1993 Supp (4) SCC 595 Page 18 15) The argument of public policy pressed by the respondents is of no avail. We are conscious of the fervent plea raised by the respondent employees that employees belonging to SC/ST category should be made eligible for promotion by providing the reservation in the promotional posts as well, as their representation is abysmally minimal. However, whether there is any such justification in the demand or not is for the State to consider and make a provision in this behalf. This was so recorded in the judgment itself in the following manner:
16) Once we find an error apparent on the face of the record and to correct the said error, we have to necessarily allow these review petitions.
17) In view of the foregoing, the review petitions are allowed by deleting paragraph Nos. 33 to 36 of the judgment and the directions contained therein, as well as the directions contained in paragraph No. 37. Instead, after paragraph No. 32, following paragraph shall be inserted and numbered as 33, and paragraph No. 38 should be re-numbered as 34: Page 20
18) All the interlocutory applications for impleadment/intervention also stand disposed of.
19) Before we part with, we would like to observe that we have mentioned in para 15, which was also recorded in the main judgment, that the grievance of the employees belonging to SC/ST category is that there is negligible representation of employees belonging to their community in the officers' category at all levels. Keeping in view the statistical figures which have been placed on record showing their representation in officers' scales, it would be open to the concerned authority, namely, the State and the Banks to consider whether their demand is justified and it is feasible to provide reservation to SC/ST category Page 21 persons in the matter of promotion in the officers' category and if so, upto which scale/level .............................................. J. (J. CHELAMESWAR) ............................................. J. (A.K. SIKRI) NEW DELHI; JANUARY 08, 2016.