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Judgment
Anand Byrareddy
Heard the counsel for the petitioner and the respondents.
It is the case of the petitioner that he belongs to a Scheduled Tribe, The petitioner is employed with the respondent - bank as a Clerk, having been promoted in the year 2002. It is his case that under the policy of reservation read with the settlements arrived at under the Industrial Disputes Act, between the employees'' unions and the management of the respondent - bank, the petitioner became entitled to be promoted from the cadre of peon to the cadre of clerk in the year 1991. On denial of promotion, the petitioner had approached this court by way of a writ petition in WP 11767/199). That petition was disposed of by an order dated 30.3.1999 in view of the petitioner not having challenged the settlement that is arrived at. Therefore, the petitioner was constrained to file yet another writ petition in WP 33199/1999. which was allowed and it was held that the denial of promotion at least from the year 1993 could not be sustained. Therefore, the bank was directed to reconsider the matter afresh. This was on noticing that, during the pendency of the writ petition, the petitioner had been promoted as a clerk by an order dated 9.1.2002, but was with effect from 1.5.2001, However, instead of considering the case of the petitioner, in accordance with the findings recorded by this Court and in accordance with the policy of reservation, the bank had yet again, rejected the case of the petitioner by an order dated 1.9.2006. Aggrieved by this, the petitioner is before this court.
It is contended by the learned counsel for the petitioner that the provisions of settlement, which are relevant for purposes of this petition, read as follows :-
4.6
There shall be three channels for promotions as above, viz.,
(1) Members of subordinate staff who attained the minimum qualification as stipulated for appointment in clerical cadre in public sector banks through BSRB shall be eligible for promotion. For the present these qualifications are -
(a) a degree of a recognised University in any discipline; or
(b) pass in second Division (where Division is not awarded by the examining body, pass with 50% marks) in Higher Secondary Examination or (10+2) of (10+2+3) pattern or intermediate or Pre-University or 11th Standard of (11+3) pattern of a statutory Board or equivalent.
(c) pass in first Division (where Division is not awarded by the examining body, pass with 60% marks) in Matriculation or SSC (old pattern) or SSLC or 10th Standard or (1.0+2+3) pattern of a statutory Board or equivalent.
Note: Relaxation for SC/ST:
(i) Pass in Higher Secondary examination (10+2) of (10+2+3) pattern/11th Standard examination of (11+3) pattern/Intermediate/Pre-University or pass-in 2nd Division (where Division is not awarded by the examining body, pass with 50% marks) in Matriculation/SSC (old pattern)/SSLC/10th Standard of (10+2+3) pattern of a statutory Board or equivalent.
(ii) Members of subordinate staff who have passed SSLC or Matriculation but do not come under category (i.) above shall be eligible for promotion after they have completed two years service after passing SSLC or equivalent examination.
(iii) Non-matriculate subordinate staff with a minimum of seven years continuous service shall be eligible for promotion through a selection process comprising written test, interview and service seniority. Marks on these three heads shall be distributed in the following manner.
a) Written Test (There will be 125 marks (Pass marks one paper of 125 marks in written test - For Arithmetic, English and General candidates 35%. General Knowledge, model For SC/ST candidates questions/syllabus to be 30%). published before test).
b) Interview 35 marks.
c) Service 40 marks (4 marks for each completed year of service.
4.7.
For selection to the posts of Clerk-cum-Typists apart from the conditions set out in para -16 above, there shall be a test in English Typewriting, requiring a speed of not less than thirty words per minutes.
4.8.
The total vacancies in a region for subordinate staff promotion (as per para 4.5 above) would be distributed at the rate of one third, over each of the three channels of promotion (as per para 4.6 above). However, unfilled vacancies in one particular channel in a region can be filled up by the eligible candidates of the other channels within the said region. But, there would be no carry over of the vacancies for one war to the other and vacancies remaining unfilled in a year will remain unfilled or it may be filed up by BSRB candidates.
The petitioner, as stated earlier, belongs to a Scheduled Tribe and is entitled for relaxation as provided under Clause 4.6 and further having regard to his qualification, he is entitled for consideration of his case for promotion, both under Channel-I as also under Channel-II. Clause 8.1 of the Settlement makes the reservation policy applicable to promotions from subordinate cadre to clerical cadre. Clause 8.1 reads as follows :-
8,1 Reservation for SC/ST:
The directives: of the Government of India regarding reservation of posts for candidates belonging to SC/ST as in force, from time to time, would be applicable in the case of promotions -
(a) from subordinate cadre to clerical cadre.
And
(b) from clerical cadre to the officers'' cadre in Bank''s Junior Management Grade Scale-I.
It is pointed out that this Court, by its order dated 13.2.2006, had directed the bank to consider the claim of the petitioner for deemed promotion from a subordinate cadre to the clerical cadre, from the year 1993. It was held that the question of not filling up the vacancies available to Scheduled Caste candidates or general candidates, on the ground that there was no suitable candidate available to be promoted against roster point no. 1 reserved for Scheduled Caste is contrary to the terms of settlement and directives issued by the Government of India, It was specifically observed that the respondent - bank has not taken into account the Notification dated 28.1.1952, issued by the Government of India as also Clause 8.1 of the Settlement extracted hereinabove. The bank having rejected the representation of the petitioner in this regard, the petitioner is before this court.
The learned counsel for the petitioner would point out that the Central Government has prescribed a 40 point roster for posts to be filled by promotion, under which, roster point-1 in the roster is shown as reserved for Scheduled Caste and points 2 and 3 are shown as unreserved and point-4 is shown as reserved for Scheduled Tribe. Para 3.15 of the Brochure on reservation for Scheduled Castes and Scheduled Tribes in Public Sector Banks indicates that the roster is intended to be an aid to determine the number of vacancies to be reserved for Scheduled Castes and Scheduled Tribes and is not meant to be used for determining the order of actual appointment or for the purpose of determining seniority. Under Para 3.4(3) of the Brochure, where a Scheduled Caste candidate is not available, the reserved point may be merely shifted to the next point in the roster. Having regard to this provision, in the year 1991 and as a matter of fact, when there is neither a Scheduled Caste candidate nor a general merit candidate available for promotion under Channel-I, the bank ought to have promoted the petitioner by shifting the first point in the roster earmarked for Scheduled Caste candidate and since no general merit candidate was available against roster points 2 and 3, the petitioner ought to have been promoted against either one of those points or against the fourth point reserved for Scheduled Tribe. Under Para-7.7 of the said roster, the petitioner ought to have been promoted by exchanging roster point no. 1 reserved for Scheduled Caste with point no.4 reserved for Scheduled Tribe.
The denial of promotion to the petitioner on the ground that the bank has so far not found an eligible Scheduled Caste candidate for being promoted against roster point no. 1 is arbitrary and contrary to the provisions of the various Government Orders contained in the brochure.
It is this primary contention that is sought to be denied in the Statement of objections filed opposing the petition and it is specifically contended at Para-19 as follows:-
The vacancy reserved for a Scheduled Caste candidate cannot be exchanged by a Scheduled Tribe candidate and this is not permissible. It is permissible only against the reserved vacancies which have been carried forward for the third year. In the promotion process of 1989, no reserved vacancy was carried forward under Channel-I and since no reserved vacancy was filled by general category candidate, there was no backlog vacancy for the Scheduled Caste in the year 1991.
This statement was vehemently denied by the petitioner and it was sought to be pointed out with reference to the brochure, a copy of which is produced, providing for accommodating a Scheduled Tribe candidate in the absence of Scheduled Caste candidate or a general candidate against roster point nos. 1,2 and 3 for three consecutive terms. In view of such denial by the petitioner, the respondent has sought to file additional statement of objections again reiterating the same contentions, but without again, being in a position to hold that the procedure does not contain any such guideline and since the guideline in the brochure is patent and in line with the argument canvassed by the learned counsel for the petitioner, the petition would have to be allowed.
Accordingly, the petition is allowed. Annexure-R is quashed. The first respondent is directed to promote the petitioner as a clerk with effect from 7.4.1993 and grant all consequential benefits, taking into account the length of service, to which the petitioner would be entitled for pension and retirement benefits. The petitioner however will not be in a position to draw any difference of salary that would be payable by virtue of the petitioner being treated as a clerk, who is promoted with retrospective effect from 7.4.1993. The petition stands disposed of accordingly. The service so computed, with retrospective effect shall, however, be taken into account for future promotion as prospects.