Mr.Uttam E.Sirsat & Ors vs Union Of India & Anr. & Air ...
2017 Latest Caselaw 4086 Bom

                                                         corrected WP 2223-95.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION
                                  WRIT PETITION NO.2223 OF 1995

       1. Mr. Uttam E. Sirsat 
       of Bombay, Indian Inhabitant,
       residing at Uttara Apartments, A-1
       Jan Kalyan Nagar, Malad (W),
       Bombay 400 095.

       2. Mr. S. R. Bhatkal
       residing at 16/196, Ram Krishna
       Nagar, Khar (W), 
       Bombay 400 052.

       3. Mr. R. J. Bhatia
       residing at C/93,
       Snehadhra Dadabhai Cross
       Road No.3, Bombay 400 056.                            .. Petitioners
             Vs.
       1. Union of India
       through Ministry of Industry,
       Bureau of Public Enterprises,
       known as Department of Public
       Enterprises situate at
       Block no.14, C.G.O. Complex,
       Lodhi Road, New Delhi 110 003.

       2. Air-India Limited
       through Human Resources &
       Development Department,
       Old Air Port, Santacruz (E),
       Bombay 400 029.
       also having their Head Quarters
       at Air India Building, Nariman
       Point, Bombay 400 021.

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 3. AIR Corporation Scheduled Caste 
 and Scheduled Tribe Employees
 Association having its office at
 Old Air Port premises, Santacruz (E),
 Bombay 400 029.                                       .. Respondents


 Ms. Prachi Khandge i/b. M.P. Vashi & Asso., for the petitioners.
 Mr. Lancy D'Souza with Ms. Deepika Agarwal with Mr. Sudeep 
 Dasgupta i/b. Bhasin & Co., for the respondents.

                                   CORAM                         : A.A.SAYED AND
                                                                    M.S.KARNIK, JJ.

RESERVED ON : 29th JUNE, 2017

PRONOUNCED ON : 6th JULY, 2017

JUDGMENT (PER M.S. KARNIK, J.) :-

The petitioners are working as Supervisory staff with

the 2nd respondent i.e. Air-India Limited. On 29/6/1987, the

Ministry of Industry and Bureau of Public Enterprises issued a

Circular clarifying that Time Bound Promotion Scheme ('TBP

Scheme' in short) adopted by various Public Sector

Undertakings should not be in violation of the instructions

issued by the government on the point of reservations. It was

clarified that the promotions under the TBP Scheme have been

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delinked from vacancies and are available to all eligible

employees on completion of the prescribed length of service

except those who are found unfit for promotion. The said

clarification in fact provided that there is complete absence of

vacancy based promotions under TBP Scheme and the

promotions under the scheme should be without any specific

screening of merit, provision for rosters or zone of consideration

which have concomitants of vacancy based promotion as the

same are irrelevant to TBP Scheme.

2. The respondent no.2 implemented the TBP Scheme

from 1/4/1989 and granted benefit of the Circular to every

employee working at supervisory, clerical and other allied

category on completion of certain length of service. According to

the petitioners, from inception of the TBP Scheme, no

reservation was provided in the said scheme, except for

promotions from Office Assistant's post to Senior Office

Assistant's post.

3. It is the petitioners' case that having regard to the

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office Memorandum dated 29th June 1987 issued by the 1 st

respondent, the reservation policy was not applied by the 2 nd

respondent in the TBP Scheme. However, by a Circular dated

19/20th May 1995, the 2nd respondent applied the reservation

policy in TBP Scheme with retrospective effect from 1 st January,

1992. It is the petitioners' case that the petitioners who

belonged to the General Category are more likely to be affected

by the decision of respondent no.2 applying the reservation

policy. In the submission of the learned counsel for the

petitioners, they are seriously prejudiced by this. According to

him, there should not be no reservation policy in TBP Scheme as

directed by Union of India. The respondent no.2 has unilaterally

applied the reservation policy to TBP Scheme. In the submission

of the learned counsel for the petitioners, the said policy is

discriminatory as in respect of other undertakings no reservation

is applied to promotions under TBP Scheme. It is further

contended that as a result of giving benefits of reservation under

the TBP Scheme the permissible limit of reservation has

exceeded as this is over and above the benefit i.e. period

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available to vacancy based promotion. In the submission of the

learned counsel for the petitioners the TBP Scheme is meant to

remove stagnation and the benefits under the said scheme are

based on the length of the service and, therefore, applying the

reservation policy is completely contrary to the object of the

scheme.

4. The learned counsel for respondent no.2, on the

other hand, invited our attention to the affidavit-in-reply filed

on behalf of respondent no.2. He has raised an objection as

regards the maintainability of the petition. According to him, all

the petitioners are holding posts which are not time bound

promotion posts at all. Therefore, they have no locus to file the

petition. Moreover, with the passage of time, the petitioner no.1

has since retired as Assistant General Manager and the

petitioner nos.2 and 3 are promoted and holding the posts of

Assistant General Manager. We find some merit in the objection

raised by the learned counsel for the respondent no.2 that the

present petition does not deserve to be entertained. In due

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course the petitioners are promoted. The apprehension of the

petitioners that the reservation policy in TBP Scheme is likely to

hamper their prospects of promotion is thus unfounded. This

apprehension appears to be the cause for filing this Petition.

This itself is a good ground to reject the Petition. We have

however examined the petitioners contention on merits as well.

5. Having given an anxious consideration to the

submissions advanced by the learned counsel for the parties we

find that the respondent no.2 adopted new TBP Scheme on

8/5/1996, pursuant to which the effective date of promotion

was to be 1st July, 1996. In accordance with this policy,

reservation in promotion is applied to S.C. / S.T. in clerical

category upto the grade of Junior Officer to the lowest rung of

class 'A' officers, as per the Presidential Directives. All employees

joining the Company as Typist Clerks, Traffic Assistants, etc.

were to be promoted to the posts of Senior Typist Clerks and

Senior Traffic Assistants, etc. on completion of five years of

service subject to criteria laid down in promotion policy. This

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applies to every category of employees as well. It is the stand of

the respondents that promotions are not based on the vacancies

but virtually all the eligible employees are promoted on

completion of the eligibility service/criteria. The only effect of

the roster is that some reserved categories of employees were to

get promotion earlier as per the Presidential Directives if they

fall on Reserved Roster Point. This does not in any way affect

the chance of promotion of the non reserved category of

employee who is bound to be promoted on completion of the

prescribed length of service. The categoric stand of the

respondent no.2 is that the question of the roster system

resulting in blocking of any promotion of general candidate does

not arise because all candidates whether there are vacancies or

not will be promoted to the next higher post provided they

complete qualifying years of service and subject to percentage

limitation. According to the respondents, the contention of the

petitioners that if all the posts are filled up by promoting

reserved category candidates, would result in drying up of

promotion avenues for general categories, is totally unfounded.

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In the light of the policy those eligible candidates who

completed certain number of years subject to eligibility criteria

are invariably promoted. There is no question of availability of

the vacancies.

6. In view of this, we find that the apprehension of the

petitioners that they are likely to be affected by the decision of

2nd respondent, as they belong to general category, is completely

misconceived.

7. Moreover, reliance on the office memorandum dated

29/6/1987, issued by the Bureau of Public Enterprises, to

indicate that the office memorandum applies to respondent no.2

as well, is not correct. The list of Central/Public Sector

Undertakings mentioned in the Annexure to the office

memorandum does not include the respondent no.2-Air India.

Respondent no.2 in any event is not a Central/Public Sector

Undertakings but is a statutory corporation. The very basis of

the petition is the application of the said office memorandum to

respondent no.2. Respondent no.2 has its own scheme, which

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scheme was framed after negotiation with the recognized Union,

namely, Air India Employees Guild. Paragraph 3 of the said

settlement specifically mentions that all promotions would be

reviewed every year in January and July in accordance with the

policy and the procedure of the Corporation except as otherwise

stated. This settlement nowhere excludes reservation for

Scheduled Caste and Scheduled Tribes nor does it exclude the

maintenance of the roster as is the policy of Air-India.

8. The respondent no.2 is justified in placing reliance

on the decision of the Apex Court in the case of Air India and

ors. v. B.R. Age and others [(1995) 6 SCC 359] and P. and T.

Scheduled Caste/Tribe Employees' Welfare Association

(Regd.) and others v. Union of India and others (AIR 1989

SC 139) to support the contention that the TBP Scheme

providing reservation is not violative of the provisions of the

Constitution.

9. In any event, we find that no prejudice is caused to

the petitioners by applying reservations to the TBP Scheme. We

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therefore find no merit in this petition and the same is

accordingly dismissed with no order as to costs.

10. Rules to stand discharged.

 (M.S.KARNIK, J.)                                            (A.A.SAYED, J.)