Bahadur Singh vs Delhi State Industrial ...
1992 Latest Caselaw 594 Del

JUDGMENT

Santosh Duggal, J.

(1) The petitioner who is working as Deputy Manager with the Delhi State Industrial Development Corporation Limited, (for short 'DSIDC'), has come up with this writ petition feeling a grieved by the denial of opportunity of promotion to the post of Divisional Manager to which he claims to be entitled, inasmuch as by an office order dated 8th June 1989, five other Deputy Managers, one of whom Shri Chander Pal, respondent No. 6, was junior to him, were promoted, ignoring the claim of the petitioner.

(2) It appears that there were six vacant posts available with respondent No. I which, according to the petitioner, were pending since 1982, but in any case, steps were taken to fill up these posts in 1988-89. It is the admitted case between the parties that under the service regulations, as applicable to these posts, 50% were in the promotion quota and 50% in the direct recruitment quota, with the result that only three posts could be filled up by promotion from amongst officers working as Deputy Managers, and three had to be filled up by direct recruitment, which would include one post reserved for Scheduled Caste candidate.

(3) Departmental Promotion Committee, (D.P.C. for short), however, recommended conversion of two posts for direct recruitment to be filled up by promotion, and recommended five persons for promotion as Divisional Managers with the recommendation that approval of the Chairman be obtained turn conversion of the post of direct recruitment quota to be filled up by promotion. As a sequel to this recommendation oftheD.P.C.,five Deputy Managers were promoted by the impugned order dated 8th June 1989, as Divisional Managers. The petitioner was at No. 12 in the seniority lists, and admittedly belongs to Scheduled Caste. He fell within the zone of consideration, and was called for interview by the D.P.C., but not recommended for promotion.

(4) The main contention raised on behalf of the petitioner is that inasmuch as the D.P.C. chose to recommend five persons for promotion, as against three available posts in the promotion quota, there was a discrimination against him in not considering him for the remaining post, meant for a person belonging to Scheduled Caste and that the provisions of the rules and regulations on the subject have been ignored. He also attributes mala fide in the sense that this course was adopted by the D.P.C. to favor some persons, belonging to general category, and discriminating against him, inspite of the fact that he was senior to respondent No. 6, and was at no stage found unfit for promotion, and that by virtue of clause 2.3.2 (i) in terms of the instructions issued for procedure to be observed by a D.P.C., issued on 10th March 1989, a special concession bad to be shown to him as a Scheduled Castes candidate, and once he was within the zone of consideration, and not found unfit for any promotion, he ought to have been promoted along with others against the sixth vacancy, and that he had been discriminated against by being ignored, and by the decision to fill up that post by direct recruitment, and by advertisement for the same.

(5) The respondents do not deny that the petitioner was within the zone of consideration but the stand taken is that he was duly considered by the D.P.C., held on 30th May 1989. It is contended that the chairman was well within his authority to accord approval to the conversion of the post falling in the direct recruitment quota, to be filled by promotion, and that rightly decision was taken to do so, and further that the third vacancy falling in the direct recruitment quota could not be filled up by promotion because of the government's instructions that that post had to be filled up by Scheduled Castes candidate, and it was for this reason that the same was advertised, and that the petitioner was also given an opportunity to appear for interview in the direct recruitment quota but could not qualify.

(6) In so far as the promotion is concerned, the contention is that it is a selection post, and that there was no reservation policy for members of the Scheduled Castes and Scheduled Tribes in the case of promotion within group 'A' posts, and that the petitioner did not have a preferential claim to be considered for promotion against the third remaining vacancy of the direct recruitment quota.

(7) During course of hearing, it was felt necessary to go through the proceedings of the Departmental Promotion Committee. Accordingly, the file was called for, which was produced before me, and I perused the same. I found that the decision to convert two posts of direct recruitment quota to be filled up by departmental candidates by promotion was taken by the D.P.C. at the time of recommending names for appointment on the basis of selection, and the reason given was that in the interest of financial exigency, these two posts should be filled by promotion rather than by direct recruitment. The names were accordingly, forwarded with a recommendation that the Chairman accord bids approval to this conversion of the posts from direct recruitment to pro- motion, which the Chairman did subsequently.

(8) It is thus not a case where the Chairman had taken any policy decision, to convert two posts of direct recruitment to be filled by promotion in the interest of financial exigency, but it was the D.P.C. which while recommending five names, in place of three, suggested this course for being adopted. This betrays the manifest intention, and effort on the part of the members of Departmental Promotion Committee to give promotion to more persons than those falling within the promotion quota. The reason of financial constraint for not filling up the post by direct recruitment is on face of it not tenable because once an advertisement was being issued for filling up the third post falling in the direct recruitment quota, there was no reason that the other two posts also could not be so advertised. Accordingly, the reason of financial constraint is not sound, and does not carry conviction, particularly when the pay scale of the officer appointed as Divisional Managers, whether by promotion or by direct recr-uitment, was to be the same.

(9) Having decided to' convert two posts of direct recruitment quota into promotion quota, the next straightforward step for the D.P.C. ought to have been that the third post was be also filled up likewise, particularly when a Scheduled Castes candidate was available, who fell within the zone of consideration.

(10) The plea that this post had to be advertised because of some government instructions, and for that reason was not offered to the petitioner again smacks of lack of application of mind, or of a design to deprive the petitioner of the right of promotion, because all that the instructions say is that the post meant for Scheduled Castes candidate should not be dereserved and given to a general category candidate. When a Scheduled Castes candidate was available, these instructions could not have stood in the way, and once the D.P.C had recommended two departmental candidates of general category for promotion against direct recruitment quota, the logical course was to recommend the petitioner also against the third vacancy, falling in the Scheduled Castes quota.

(11) The contention that the post in question was a selection post and could not be given on the basis of seniority alone, is also not tenable for the reason that there are instructions to the effect that although strictly speaking principle of reservation may not apply to posts falling in group 'A' of certain scale, but still certain concessions had to be given to the persons belonging to Scheduled Castes and Scheduled Tribes.

(12) . The basic policy is contained in Chapter 9 of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services which is headed as "Reservations and Concessions" and lays down that whereas there was no reservation in promotion by selection within group 'A' of a given scale of pay, but Scheduled Castes or Scheduled Tribes officers who were senior enough to be in the zone of consideration for promotion, so as to be within the number of vacancies for which the select list has to be drawn up, would be included in that list, provided they are not considered unfit for promotion. Their position in the select list would, however, be the same as assigned to them by the D.P.C. on the basis of their record of service. They would not be given, for this purpose, any grading higher than the grading otherwise assignable to them on the basis of their record of service.

(13) The directive based on the same lines as the Presidential directive contained in paragraph 9.2 of Chapter 9 of the Brochure came up for adjudication-before the Supreme Court in the case reported as 1985(1) Service Law Reporter 667, The Bihar State Harijan Kalyan Parishadv. The Union of India of Others. After reproducing the said directive, which is identical in terms as instruction 2.3.2 applicable to the present case. It was held that a close perusal of the directive, and in particular paragraph 9, which deals with concessions to candidates of Schedule Castes ond Schedule Tribes in promotion by selection method, makes it abundantly clear that the rule of reservation is also applicable to promotions by selection to posts within group 'A' which carry ultimate salary of Rs. 2,2501- p.m. or less. It is clarified that whereas the rule of reservation shall apply to such posts also, but the procedure is slightly different, and instead of a Scheduled Castes candidate being fixed against a given slot as per the roster, he was to be within the zone of consideration, and further should not be considered by the D.P.C as "being unfit for promotion", and their position in the select list would be that assigned to them by the D.P.C. on the basis of record of service and other relevant factors. It was reiterated that paragraph 9 of the Presidential Directive proceeds on the basic assumption that the rule of reservation does apply but prescribes of certain procedure to be followed, a procedure different from the usual procedure, for filling up posts reserved for Scheduled Castes and Scheduled Tribes candidates. The decision, in variance to the terms of the aforesaid Directive taken by the concerned authority. Steel Authority of India in that case, was quashed with a direction that effect be given to the Presidential Directive in the manner interpreted by the Court.

(14) This view has been reiterated in a very recent judgment of the apex Court reported as , Syndicate Bank Scheduled Castes & Scheduled Tribes Employees Association (Regd.) v. The Union of India, where again Presidential Directive, as contained in paragraph 9.2 came up for consideration, and some instructions issued by the Central Government were held to be wrongly and erroneously issued. It is noteworthy that. in that case the Court had gone a step further, and has held that not only rule of reservation is applicable to promotion by selection to posts of group 'A', which carry a given scale of salary, but that benefit of reservation policy to members of Scheduled Castes and Scheduled Tribes cannot be denied on the ground that promotional posts are to be filled up by method of selection.

(15) It is pertinent to note that in this case, the respondent did not even contest the matter in view of the earlier judgment in the case of Bihar State Harijan Kalyan Parishad (supra). The only plea taken by the concerned bank was that in the absence of clear directions by the Government of India, it was not possible for the bank of grant relief to the Scheduled Castes and Scheduled Tribes employees. Holding that the Union of India had taken a wrong view, and that in view of what had already been decided in the case of Bihar State Harijan Kalyan Parishad (supra), the instructions issued by the Banking Division of the Finance Ministry of the Government of India were held liable to be quashed, and the bank was directed to give effect instructions, as contained in the Presidential Directive contained in paragraph 9.2 so much so that direction was given to the respondents, after declaring certain orders passed by them to be illegal that they compute the backlog of unfilled reserved quota available to the Scheduled Castes and Scheduled Tribes officers in the promotional posts with retrospective effect.

(16) The learned Counsel for the petitioner placed reliance on these two judgments of the Supreme Court. However, Mr. Shyam Moorjani appearing for the respondents insisted that the ratio of these judgments would not apply to the present case, pointing out that the Office Memorandum, as reproduced in the case of Syndicate Bank Scheduled Castes & Scheduled Tribes Employees Association, para 16 of the said judgment did not contain the line, "......so as to be within the number of vacancies for which the Select List has to be drawn up......"and that this line held the key for considering promotional policy in the present case because regulation 2.3.2 of the Office Memorandum stipulated such a condition.

(17) It is a pity that after committing one mistake, deliberate or otherwise, is not considering the petitioner for promotion, the respondents are persisting in perpetuating the wrong done to the petitioner, inspite of a very clear and firm view enunciated by the Supreme Court in the aforesaid two cases. It is note-worthy that in the second case, the respondents had shown and good sense, in view of the earliar judgment of the Supreme Court, not even to contest the principle, but here the respondents are tenaciously opposing the prayer of the petitioner made in this writ petition. The Office Memorandum which came up for consideration by the Supreme Court in the case of Bihar State Harijan Kalyan Parishad (supra) is identical in terms as the Presidential Directive contained in paragraph 9.2 of Chapter 9 of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes and also to the wordings of regulation 2.3.2, which are applicable in the present case, and omission of the line, pointed out by Mr. Moorjani. as extracted in the judgment Syndicate Bank case (supra), is apparently a typographical error, and does not make the case distinguishable from that of Bihar State Harijan Kalyan Parishad (supra) or from the present one.

(18) As a result, the only factor which could disqualify the petitioner from being considered for promotion, once he was within the zone of consideration, was if the D.P.C. found him "unfit for promotion", and recorded this in the minutes. The proceedings of the D.P.C. were perused by me in detail, and I found that nowhere the D.P.C. has adverted to this requirement to consider the petitioner as Scheduled Caste officer, and then record a decision, whether he was unfit for promotion. In the absence of that, it is to be presumed that he was not found unfit for promotion, and as such on the interpretation as given to this Directive by the Supreme Court in the aforesaid two cases, there was no justification for the respondents to deny to the petitioner, promotion to the post of Divisional Manager against the sixth vacancy which was meant to be filled up by a Scheduled Castes candidate. I also find from the supplementary affidavit and the reply thereto that although the sixth post was filled up by Scheduled Caste candidate as a result of interview, but even then vacancies were available with the respondents during the relevant period.

(19) I therefore find it a fit case to give a direction to the respondents to promote the petitioner as Divisional Manager with effect from the date, from which the person junior to him, namely, respondent No. 6, was promoted namely, 8th June 1989, with all the consequential benefits. In case, during this period at any point of time, a vacancy was not available, then to enable the petitioner to draw salary and other benefits, a supernumerary post shall be created for that limited period.

(20) The petition is allowed in the above terms with costs. The respondents are directed to give effect to this judgment within two months Counsel's fee Rs. 1000.00 .