V.T. Khanzode & Ors Vs. Reserve Bank of India & ANR [1982] INSC 36 (5 March 1982)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA KOSHAL, A.D.
CITATION: 1982 AIR 917 1982 SCR (3) 411 1982 SCC (2) 7 1982 SCALE (1)316
CITATOR INFO :
RF 1985 SC 774 (2) RF 1986 SC1830 (1,8,9,13,37) RF 1987 SC1399 (20) R 1988 SC2073 (13)
ACT:
Seniority-Draft combined seniority list fixed by the Administrative Circular No.8 dated January 7, 1978, Office Order No. 679 dated April 27, 1978 by the Reserve Bank, whether violative of Articles 14 and 16 of the Constitution of India.
Reserve Bank of India Act, (Act II) of 1974-Section 58(1) & (2), scope of-Whether the power to make regulations emanate from section 58(1)-Competency of the Central Board of Directors to make regulations and to issue administrative circulars in respect of service conditions of staff.
Retrospectivity of the operation of the seniority scheme, validity of.
HEADNOTE:
Under the Reserve Bank of India (Staff) Regulations, 1948 framed under section 58 of the Reserve Bank of India Act 1934, the terms and conditions of service of the staff (including officers) in the Reserve Bank were revised and regulated from time to time.
Ever since the date of the Staff Regulations of 1948 and even prior thereto, there were "groups" constituted for the different departments of the Reserve Bank, and officers were required to exercise irrevocable options for service in any particular Group. Those who had opted for a service in a particular Group were to be normally eligible for promotion in that Group only. The grouping was revised with effect from April 1951 when employees were asked to exercise their option with regard to the Group of their choice. In 1951, the various departments of the Bank were re-classified into three Groups, Group I, Group II and Group III. This system of grouping continued until 1955, in which year the Bank found it necessary to reorganise the Agricultural Credit Department. Accordingly, the staff attached to the various departments were regrouped into Groups I, II, III, and IV, with effect from April 1, 1957. In each of these Groups, there are six grades of officers based on pay scales, namely, Grades A, B, C, D, E and F, the lowest being Grade A and the highest being Grade F. Each Group had its own seniority list, that is to say, there were four separate seniority lists, one for each group. The latest of such lists prior to the draft combined seniority list of 1978 is dated July 1,1976.
Earlier to the said list dated July 1, 1976, the Reserve Bank had constituted a Cadre Review Committee in 1970 followed by another Committee. On the 412 basis of the report submitted by the Cadre Review Committee in October 1972, the Bank issued an Administrative Circular No. 15 dated May 22, 1974 specifying the decisions taken by it in the light of the recommendations made by the Committee. One such decision which the Bank took was to prepare a common seniority list for and to provide for inter-group mobility at the lowest level of officers in each group, namely, Grade A officers, including those who were promoted to Grade B on or after January 1, 1970. With regard to higher grades (including officers in Grade B promoted prior to January 1, 1970), the Bank decided to retain the "group-wise seniority as at present". The inter-group mobility in Grades C and D was to be introduced only to a limited extent, namely, "on a swap basis". It was first to be introduced in Grade C and thereafter to be extended "in due course" to the officers in Grade D. The two higher Grades, namely, Grades E and F were left untouched and no intention was expressed in the above circular to introduce either combined seniority or any scheme for inter-mobility in these grades. In accordance with the decisions expressed in the Administrative Circular dated May 22, 1974 the Bank published separate seniority lists of officers in Grade B and above for the years 1974, 1975 and 1976.
By the Administrative Circular No. 8 dated January 7, 1978, the Bank stated that it had decided to combine the seniority of all officers on the basis of their total length of service (including officiating service) in Group I (Section A), Group II and Group III. The seniority of all officers in each of the three Groups was to be combined with effect from May 22, 1974 on the basis of their total length of service, including officiating service, in the grade in which they were then posted on a regular basis. The Circular introduced combined seniority with retrospective effect from May 22, 1974 (the date of Administration Circular No. 15) as it was "fair and equitable to the officers as a class". The effect of this decision is that the group-wise system of seniority which was in existence for more than 27 years stands substituted by a combined seniority for officers in Group I (Grade A) and in Groups II and III with retrospective effect. That has adversely affected the existing seniority of officers, particularly of those in Group I, who are now placed many places below their existing position of seniority, some by several hundred places.
Hence these twenty five petitions under Art. 32 by the petitioners, all of whom are officers in Group I, and who are given their due seniority as on July 1, 1976.
Dismissing the petitions, the Court
HELD: 1:1. The Administrative Circular No. 8 dated 7-1- 1978, the Office Order No. 679 dated 22-4-1978 and the draft combined seniority list are not violative of the rights of the petitioners under Articles 14 and 16 of the Constitution. Whether there should be a combined seniority in different cadres or groups is a matter of policy which does not attract the applicability of the equality clause.
[442 D-F] Reserve Bank of India v. N. C. Paliwal, [1977] 1 SCR 377, applied and followed.
413 1:2. The historical events make it clear that the various Departments of the Reserve Bank were grouped and regrouped from time to time. Such adjustments in the administrative affairs of the Bank are a necessary sequel to the growing demands of new situations which are bound to arise in any developing economy. The group system has never been a closed or static chapter and the officers of the various groups were not kept, as it were, in quarantine. The group system has been a continuous process of trial and error and the impugned scheme of inter-group mobility has emerged as the best solution of the experience of the past.
Combined seniority has been recommended by two special committees, whose reports reflect the expertise and objectivity which was brought to bear on their sensitive task. [441 B-D] 1:3. Inter-group mobility and common seniority are a safe and sound solution to the conflicting demands of officers belonging to Group I on one hand and those of Groups II and III on the other. Private interest of employees of public undertakings cannot override public interest and an effort has to be made to harmonize the two considerations. No scheme governing service matter can be fool-proof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. [441 D-E] Arbitrariness, irrationality, perversity and mala fides will of course render any scheme unconstitutional but the fact that the scheme does not satisfy the expectations of every employee is not evidence of these. Vested interests are prone to hold on to their acquisitions and the Group I officers have to surrender a part of the benefits which had accrued to them in a water-tight system of grouping.
Combined seniority is indispensable for the smooth functioning of the Bank and no organisation can function smoothly if one section of its officers has an unfair advantage over others in matters of promotional opportunities. The reports of the Cadre Review Committee and the Thareja Committee show that combined seniority has emerged as the most acceptable solution as a matter of administrative, historical and functional necessity.
Further, the conclusion to which these committees came were considered by the Bank when Shri M. Narasimhan, later India's Executive Director in the World Bank, was the Governor and it was after Dr. I.G. Patel, Formerly Secretary, Economic Affairs, Govt. of India and Deputy Administrator, United Nations Development Programme, took over as Governor in December 1977 that the final decision was taken by the Central Board to introduce inter-group mobility and combined seniority. [441 E-H, 442 A-B]
2. As regards the retrospective operation given to Scheme with effect from May 22, 1974, it does appear that the Board has struck a via media between two extreme contentions advanced by officers belonging to Group I and those belonging to Groups II and III. But that was inevitable and it was the best solution in the peculiar circumstances of the case. In order to rectify the imbalances and anomalies caused by the compartmentalised and group-wise seniority, it was necessary to give retrospective effect to the Combined Seniority List. Officers belonging to Group I urged that the Scheme should be brought into effect from January 1, 1976, while those belonging to Groups II and III wanted the Scheme to be brought into effect from January 1, 1970. The Central Board struck a balance by choosing the date May 22, 1974, because that was the date on which 414 the decision in regard to combining the seniority retrospectively with effect from January 1, 1970 in regard to Grade 'A' and part of Grade 'B' officers was announced.
It was, again, on that date that the Bank had announced that a similar decision in regard to the remaining grades of officers was under its consideration. Thus, at least on May 22, 1974 it was known to officers of all grades that a combined seniority list was due to be brought into force. If a certain section officers succeeded in obtaining promotional benefits thereafter, the imbalance introduced thereby in the services of the Bank and the consequent dissatisfaction had to be rectified. That could only be done by not recognising the accelerated promotions obtained in the intervening period by a certain class of officers. Any scheme of seniority is bound to produce isolated aberrations and that fact cannot justify the argument that the entire scheme is for that reason violative of the guarantee of equality. [442 F-H, 443 A-D] 3:1. The power to frame service conditions is not derived from clause (j) of section 58(2) of the Reserve Bank of India Act, 1934. Section 58(2) (j) refers to staff funds and superannuation funds and it cannot comprise service conditions. Clause (j) cannot be split up to read: "the constitution and management of staff: and superannuation funds for the officers and servants of the Bank". It hardly makes any sense that way. What the clause means is: "the constitution and management of staff and superannuation funds for the officers and servants of the Bank". An important subject like the service conditions of the staff could not have been provided for in such a dubious and indirect manner. Nor indeed, could it have been described as "constitution and management of staff". A rule of seniority cannot properly fall under such a head. [426 A-D] Reserve Bank Employees Association v. Union of India, 1980 (2) S.L.R. 167 approved.
3:2. Where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict to width of the general power. Therefore, the ambit of the general power conferred by sub-section (1) cannot be attenuated by limiting it to matters specified in sub- section (2) of section 58, the provisions whereof are not exhaustive of the power of the Central Board to make regulations. [426 D-F] Emperor v. Shibnath Banerjee, 72 I.A. 241; Omparkash v. Union of India, A.I.R. 1971 SC 771, 773, 774, referred to.
4:1. The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood, "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires". The Central Board of Directors of the Reserve Bank has the power to make service regulations under section 58(1) of the Act. The Board is vested with power to make regulations in order to provide for all matters for which provision is necessary or convenient for the 415 purpose of giving effect to the provisions of the Act and it is not only convenient but manifestly necessary to provide for the service conditions of the Bank's staff in order to give effect to the provisions of the Act. It cannot be denied that the power to provide for service conditions of the staff is at least incidental to the obligation to carry out the purposes for which Bank was constituted. [426 G-H, 427 A-D] Armour v. Liverpool Corporation, 1939 (1) Ch.D. 422, 434, 435; Attorney General v. Great Eastern Ry. Co., 5 Appeal Cases 473, quoted with approval.
4:2. There is no doubt that a statutory corporation can do only such acts as are authorised by the statute creating it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken to be prohibited. But, section 58(1) being in the nature of an enabling provision under which the Central Board "may" make regulations in order to provide for all matters for which it is necessary or convenient to make provisions for the purposes of giving effect to the provisions of the Act, the Central Board has the power to frame regulation relating to the conditions of service of the Bank's staff. If it has that power, it may exercise it in accordance with section 58(1) or by acting appropriately in the exercise of its general power of administration and superintendence. [428 E-F, G-H, 429A] 4:3. By section 7(2) of the Reserve Bank of India Act, the general superintendence and direction of the affairs and business of the Bank are entrusted to the Central Board of Directors, which is empowered to exercise all powers and do all acts and things which may be exercised or done by the Bank. Matters relating to the service conditions of the staff are, pre-eminently, matters which relate to the affairs of the Bank. It would therefore be wrong to deny to the Central Board the power to issue administrative directions or circulars regulating the conditions of service of the Bank's staff. To read into the provisions of section 58 (1) a prohibition against the issuance of such administrative directions or circulars is patently to ignore the scope of wholesome powers conferred upon the Central Board of Directors by section 7 (2) of the Act. While issuing the administrative circular governing the staff's conditions of service, the Central Board of Directors has neither violated any statutory injunction nor indeed has it exercised a power which is not conferred upon it by the statute. The circular is strictly within the confines of section 7 (2). [429 A-E,G-H, 430 A] Sukhdev Singh v. Bhagatram, [1975] 3 SCR 619, reiterated.
4:4. So long as staff regulations are not framed under section 58 (1), it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in the exercise of power conferred by section 7 (2) of the Act. The power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject-matter on which a rule or regulation can be framed, until it is so framed. The only precaution to observe in the cases of statutory corporations is that they must act within the framework of their charter. Its express provisions and necessary implications must at all events be observed scrupulously.
[430 A-B, 431 A-B] 416 T. Cajee v. U. Jormanik Siom, [1961] 1 SCR 750; B.N. Nagarajan v. State of Mysore, [1966] 3 SCR 682, explained and applied.
4:5. Any action taken by the Central Board of Directors under section 7 (2) is subject to the directions given by the Central Government under section 7(1), just as any regulation framed by it under section 58 is subject to the previous sanction of the Central Government. In either case, the Central Board has to abide by the decision or directions of the Central Government. There can, therefore; be no apprehension that, by taking action under section 7 (2), the Central Board may circumvent the condition on which the power conferred by section 58 can be exercised by it. The overall authority of the Central Government acts as a restraining influence on any action taken by the Central Board, whether it acts under one or the other provision of the Act. [431 B-D] 5:1. A consideration of the entire material on the subject, including the correspondence that has transpired between the Reserve Bank and the Central Government and in particular the Memorandum of January 21, 1949, makes it clear that the Staff Regulations of 1948 were not framed in the exercise of power conferred by section 58 of the Act and that they were not made with the previous sanction of the Central Government. Whereas section 58 (1) envisages the making of regulations "with the previous sanction of the Central Government", the Regulations of 1948 do not purport to have been made with such sanction. Indeed, in so far as the ex facie aspect of the matter is concerned, the Regulations of 1948 have not been made under section 58 at all. The statement contained in paragraph 9 of the counter affidavit of the Deputy Manager dated March 30, 1980 that the Memorandum of January 21, 1949 contains a "factual mistake" to the effect that the Staff Regulations (which would include the Regulations of 1948) were made with the approval of the Central Government, correctly clarifies the position. It is one thing to infer that the Regulations had the approval of the Central Government since no objection was raised by it to the making of the Regulations and quite another that they were made with its previous sanction. [431 F-H, 433 B-D] Reserve Bank Employees Association v. Union of India, 1980 (2) S.L.R. 167 (Cal.); Emperor v. Shibnath Barerjee; 72 I.A. 241; Om Parkash v. Union of India A.I.R. 1971 S.C. 771, 773, 774; Reserve Bank of India v. N.C. Paliwal,[1977] 1 SCR 377; Bimal Kumar Shome v. P.C. Bhattacharya, Misc. Petition No. 206 of 1967 decided on August 6, 1969 (Bombay H.C.) R.M. Joshi v. The Reserve Bank of India, Civil Writ No. 876 of 1974 decided on March 19, 1980 by a Full Bench (Delhi H.C.), approved 5:2. Since the Staff Regulations of 1948 are in the nature of administrative directions, it was competent to the Central Board to alter or amend them by an administrative circular. No lack of statutory powers is involved in that process. Under section 7(2), the Central Board has the power to provide for service conditions of the Bank's staff by administration circulars, so long as they do not impinge upon any Regulations made under section 58 of the Act. [433 F-G, 434 A] 417
ORIGINAL JURISDICTION: Writ Petitions Nos. 4158-4182 of 1978.
(Under article 32 of the Constitution of India) F.S. Nariman, B.R. Agarwala and P.G. Gokhale for the Petitioners.
B. Sen, I.N. Shroff and H.S. Parihar for Respondents Nos. 1 & 2.
R.K. Garg, S. Balakrishnan and M.K.D. Namboodiry for Respondent No. 3.
P.R. Mridul, Mrs. Shobha Dikshit and Mrs. Urmila Kapoor for the intervener.
The Judgment of the Court was delivered by CHANDRACHUD, C.J. These are 25 petitions under Article 32 of the Constitution of India challenging the decision of the Reserve Bank of India as regards the introduction of common seniority and inter-group mobility amongst different grades of officers belonging to Group I (Section A), Group II and Group III, with retrospective effect from May 22, 1974. That decision or order is contained in Administration Circular No. 8 dated January 7, 1978 as also in Office Order No. 679 dated April 27, 1978 and has been acted upon in the draft combined seniority list of officers in Grade 'B' (appointed as such prior to January 1, 1970) and in Grades 'C', 'D', 'E' and 'F' The contention of the petitioners is that the aforesaid circular, office order and combined seniority list are violative of their fundamental rights under Articles 14 and 16 of the Constitution, and are also ultra vires the power, jurisdiction and competence of the Reserve Bank of India, being without the authority of law and in contravention of the provisions of the Reserve Bank of India Act, 1934.
The facts leading upon the impugned decision dated January 7, 1978, the office order dated April 27, 1978, and the draft combined seniority list are as follows: The Reserve Bank of India (Respondent No. 1) was established under the Reserve Bank of India Act, 1934, hereinafter referred to as "the Act". Under the Reserve Bank of India (Staff) Regulations, 1948 framed under section 58 of the Act, the terms and conditions of service of the staff (including officers) of the respondent Bank were 418 revised and regulated. These Regulations were amended from time to time. Provisions regarding record of service, seniority and promotion are contained in Regulations 27 to 30 (Chapter III), which read thus:
"27. Record of Service: A record of service shall be maintained by the Bank in respect of each employee at such place or places and shall be kept in such form and shall contain such information as may be specified from time to time by the Chief Manager.
28. Seniority: An employee confirmed in the Bank's service shall ordinarily rank for seniority in his grade according to his date of confirmation in the grade and an employee on probation shall ordinarily rank for seniority among the employees selected along with him in the same batch according to the ranking assigned to him at the time of selection.
29. Promotion: All appointments and promotions shall be made at the discretion of the Bank and notwithstanding his seniority in a grade, no employee shall have a right to be appointed or promoted to any particular post or grade.
30. (1) An employee transferred from one appointment to another or confirmed in a grade or appointment higher than his substantive grade or appointment, shall be liable to be reverted with out notice at any time within one year of such transfer or confirmation.
(2) An employee who has been appointed to officiate in a higher grade or appointment, or whose confirmation in a higher grade or appointment is subject to his undergoing probation for any specified period or otherwise, shall be liable to be reverted without notice at any time when he is so officiating or undergoing probation.
(3) Nothing in sub-regulations (1) and (2) shall affect the provisions of Regulation 47." 419 Ever since the date of the Staff Regulations of 1948 and even prior thereto, there were "groups" constituted for the different departments of the Reserve Bank, and officers were required to exercise irrevocable options for service in any particular Group. Those who had opted for a service in a particular Group were to be normally eligible for promotion in that Group only. The grouping was revised with effect from April, 1951 when employees were asked to exercise their option with regard to the Group of their choice. In 1951, the various departments of the Bank were re-classified into three Groups, Group I, Group II and Group III. This system of grouping continued until 1955, in which year the Bank found it necessary to reorganise the Agricultural Credit Department. Accordingly, the staff attached to the various departments were regrouped into Groups I, II, III and IV, with effect from April 1, 1957. In each of these Groups, there are six grades of officers based on pay scales, namely, Grades A, B, C, D, E and F, the lowest being Grade A and the highest being Grade F. Each Group had its own seniority List, that is to say, there were four separate seniority lists, one for each group. The latest of such lists, prior to the impugned combined seniority list, is dated July 1, 1976.
The Reserve Bank had constituted a Cadre Review Committee in 1970, comprising Shri Justice J.L. Nain, then a sitting Judge of the Bombay High Court, Shri V. Isvaran, I.C.S. (Retd.) and Prof. N.S. Ramaswamy, a Management Expert. The Committee submitted a report in October 1972, on the basis of which the Bank issued Administration Circular No. 15, dated May 22, 1974, specifying the decisions taken by it in the light of the recommendations made by the Committee. One such decision which the Bank took was to prepare a common seniority list for and to provide for inter group mobility at the lowest level officers in each group, namely, Grade A officers, including those who were promoted to Grade B on or after January 1, 1970. With regard to higher grades (including officers in Grade promoted prior to January 1, 1970), the Bank decided to retain the "group-wise seniority as at present". The inter-group mobility in Grades C and D was to be introduced only to a limited extent, namely, "on a swap basis": It was first to be introduced in Grade C and thereafter to be extended "in due course" to the officers in Grade D. The two higher Grades viz. Grades E and F were left untouched and no intention was expressed in the above 420 circular to introduce either combined seniority or any scheme for inter-mobility in these grades. In accordance with the decisions expressed in the aforesaid circular dated May 22, 1974, the Bank published separate seniority lists of officers in Grade B and above for the years 1974, 1975 and 1976. The petitioners, all of whom are officers in Group I, were given their due seniority as of July 1, 1976.
By the impugned Administration Circular No. 8, dated January 7, 1978, the Bank stated that it had decided to combine the seniority of all officers on the basis of their total length of service including officiating service) in Group I (Section A), Group II and Group III. The seniority of all officers in each of the three Groups was to be combined with effect from May 22, 1974 on the basis of their total length of service, including officiating service, in the grade in which they were then posted on a regular basis.
The Circular introduced combined seniority with retrospective effect from May 22, 1974 (the date of Administration Circular No. 15) as it was "fair and equitable to the officers as a class".
Briefly stated, the effect of this decisions is that the group-wise system of seniority which was in existence for more than 27 years stands substituted by a combined seniority for officers in Group I (Grade A) and in Groups II and III with retrospective effect. That has adversely affected the existing seniority of officers, particularly of those in Group I, who are now placed many places below their existing position of seniority, some by several hundred places.
According to the petitioners, the Reserve Bank has no power, competency or jurisdiction to introduce the impugned scheme which discriminates against officers in higher posts, adversely affecting their vested and existing rights of seniority. The scheme, according to them, is without any rational and far from furthering the efficient functioning of the Bank, it will affect it adversely by compelling officers to leave positions in which they had acquired long and valuable experience and work in posts for which they possess no expertise. For example, for the Department of Banking Operations and Development (in Group II), the emphasis was laid on the commercial banking experience of officers whereas, for recruitment and selection in the Agricultural Credit Department (in Group III), the emphasis was on experience in co-operation and agricultural finance.
That is why the Bank had laid the pre-condition that the 421 selected officer should give a specific and irrevocable undertaking to serve in the Group for which he was selected.
Another grievance of the petitioners is that although the Bank has stated in paragraph 9.2.1 of the impugned Circular that the seniority of officers will be combined on the basis of their total length of service, the seniority list has in fact, been prepared in a very arbitrary and iniquitous manner. In a large number of cases, it is alleged, the actual service rendered by the officers concerned has been arbitrarily reduced and adjusted in the length of service of other officers, and the latter have been nationally treated as officiating in higher grades from dates much prior to their actual promotions to those grades. In some cases, on the other hand, officiation in higher posts has been wholly ignored. This has generally resulted in accelerated and discriminatory benefit being conferred upon officers mostly belonging to Groups II and III, vis-a-vis the petitioners and the other officers in Group 1. The petitioners apprehend that a large number of officers who have been promoted since January 1, 1976 against normal vacancies in their own departments on the basis of their experience and expertise of the relative work are likely to be reverted and replaced by officers from other groups, mostly from Group III, who were selected for the specific job requirements of that group and who have no experience of the work done in the Group 1 departments. The petitioners also challenge the retrospective effect given to the impugned circular from May 22, 1974 as irrational and arbitrary. Further, according to them, the said circular dated January 7, 1978, the Office Order dated April 27, 1978 and the combined seniority list are violative of the Reserve Bank (Staff) Regulations. 1948.
In reply to the writ petition, a counter-affidavit has ceen filed on behalf of the Reserve Bank by Shri S. L. Jathar, Deputy Manager in the Department of Administration and Personnel, Central Office, Bombay. The case of the Bank, as disclosed in that affidavit is as follows: The Reserve Bank of India (Staff) Regulations, 1948, are not statutory in character, not having been framed under section 58 of the Reserve Bank of India Act, 1934. The said Staff Regulations did not provide for the division of the staff of the Bank into different groups but only categorised them as Officers, Personal Assistants, etc. In view of the growing need for specialisation in departments handling research work and developmental activities, a functional segregation of departments into four groups, with group-wise 422 seniority for Officers, was introduced in the year 1951.
Appendix XII to the Report of the 'Reserve Bank of India Cadre Review Committee', which refers to the grouping of the departments from time to time, shows that the groupings were not static and fixed but were changed as and when necessary.
Group I was composed of General Departments dealing with the day-to-day operational functions of the Bank including accounts and organisational mattres, Group II of Departments dealing with regulatory and inspection functions over the money market; Group III of Departments dealing with the Co- operatives and agricultural Credit institutions; and Group IV of Research Departments. Each Department had a separate line of seniority and although the Bank had the right under the Staff Regulations to post any employee to any group, each group operated as an independent seniority unit and the employees were eligible for promotion within their group only. It was, however, noticed that the group system had resulted in glaring inequalities in promotional opportunities in the various Departments, because of the accelerated pace of expansion of Departments in some of the Groups wherein relatively junior employees were able to secure earlier promotions and confirmations. So far as the non-officers staff was concerned, the Bank took several steps from time to time to equalise their chances of promotion. Finally, in pursuance of an agreement with the All-India Reserve Bank Employees' Association, which is a representative Association of Class III employees of the Bank, the Bank introduced a combined scheme for clerical staff in May 1972 under which, the separate seniority lists of clerical employees in Class III were merged into one list with effect from 7th May, 1972, irrespective of their respective groups. The validity of that Scheme was challenged in several High Courts and the matter came up on appeal to this Court from a decision of the Delhi High Court which has struck down the Scheme. This Court, in Reserve Bank of India v. N.C. Paliwal(1) upheld the Scheme. The 'Cadre Review Committee' whose report was received by the Bank on October 11, 1972 recommended, broadly, the gradual introduction of inter-mobility of officers in different groups and the framing of a common seniority list, except for officers in specialised groups like Economists, statisticians, Lawyers and Engineers. According to the Committee, the most rational basis for drawing up a common seniority list was to go by the date of entry of each officer in a grade in a continuous officiating capacity. The Bank announced its decision as regards the Committee's recommendations, by the Administrative Circular dated May 22, 1974. In December 1975, the Bank appointed a Departmental Committee under Shri C.L. Thareja, the then Chief Manager of the Bank, to work out the modalities of integration of the group-wise seniority lists of officers in the higher grades which had not yet been integrated. That Committee submitted its report on December 15, 1976. It unanimously recommended simultaneous introduction of combined to seniority for all grades but, its members could not agree on the date to be adopted for integration of the group-wise seniority lists. The Chairman and one member favoured January 1, 1976 as the date of integration while the remaining two members favoured January 1, 1970. A Committee of the Central Board of the Bank decided to appoint May, 22 1974 as the date for integration as a via media and also because, it was on that date that the Bank had announced to its officers its decision on combined seniority, mobility and interchangeability.
Fixation of January 1, 1970 as the date for integration would have adversely affected the interests of Group 1 officers while the other date January 1, 1976, would have adversely affected the interests of officers in other groups.
That is the answer made by the Reserve Bank to the petition. Originally, the writ petition was filed against two respondents only; (1) The Reserve Bank of India and (2) the Chief Manager, Reserve Bank of India, Department of Administration & Personnel, Central Office, Bombay. The petitioners did not implead to the petition any of the officers belonging to the other groups who are likely to be affected if the relief sought by the petitioners is granted.
Later, by an order dated July 24, 1978, respondents 3 and 4 were allowed to join in the petition on their own application. Respondent 3, Shri M.P. Saxena, was then the Deputy Chief Officer, Department of Banking Operations and Development, New Delhi, while respondent 4, Shri S. Acharya, was Deputy Chief Officer, Agricultural Credit Department, Chandigarh.
Respondent 3, whose counter-affidavit has been adopted by respondent 4, has raised a preliminary objection to the maintainability of the writ petition on the ground that hundreds of officers similarly situated who are all specifically identifiable and who would be prejudicially affected if the prayers in the writ petitions are granted, have not been impleaded as respondents. According to him, this is a case of a few privileged persons trying to retain their undue privileges at the cost of a scheme introduced to improve the 424 operational efficiency of the Institution and for the common good of the officers as a class. Respondent 3 has also raised the objection that no writ petition can lie under article 32 to enforce or challenge service conditions which are purely contractual.
The contentions raised by respondent 3 in his counter- affidavit may be summed up thus: Groupings and re-groupings of departments have been undertaken by the Reserve Bank as and when the need arose in the context of changing requirements, and all such groupings and regroupings have been done as a result of administrative decisions and given effect to through appropriate Administration Circulars.
While the expedient of group-wise promotions based on group- wise seniority lists served the immediate convenience over a period of time, this artificial segregation resulted in compartmentalised approach to questions of policy, impairing thereby the overall efficiency of the institution as a whole. Further, it also led to other anomalies and imbalances, more particularly in promotional opportunities of the staff attached to different groups. In some groups, expansion was quicker and greater than in others. It is in order to meet this situation that several measures were initiated by the Bank and by the Associations of employees of various categories. Since these measures did not meet the situation adequately, the Bank initiated a dialogue with the respective Associations for introducing a combined seniority for the various grades in different groups. For officers at the base level, namely, 'A' Grade (direct recruits), the Bank had maintained a common list of seniority in place of group-wise lists since 1968. Thereafter, groupings and regroupings have been a continuous process to meet the needs of the changing situations, and the present scheme of combined seniority which is one such, has come about as a matter of administrative, and historical and functional necessity. The implementation of the scheme of inter-group mobility is being stalled by the Bank's internal administration, which was controlled solely by a small section of officers drawn from Group-I, which all along had unfair advantage of accelerated promotions as compared with officers in Groups II and III. Thus, the petitioners' plea is an attempt to perpetuate the unfair and unequal privileges which they had enjoyed over the years without any justification and with detriment to Bank's interests a fact which has been recognised by an impartial tribunal like the Cadre Review Committee. The Staff Regulations of 1948 are in the nature of standardised contractual conditions of service. They were not framed under section 58 of the Act and 425 therefore, it is competent to the Bank to alter them by administrative circulars.
On these pleadings, the three main questions which arise for our consideration are, firstly, whether the Reserve Bank of India (Staff) Regulations, 1948 are statutory in character; secondly, whether it is competent to the Bank to provide for conditions of service of its staff by administrative circulars; and, thirdly, whether the impugned circular and seniority list offend against the provisions of articles 14 and 16 of the Constitution. The contention of the petitioner is that the Regulations were framed under section 58 of the Reserve Bank of India Act, 1934; that they cannot be altered by administrative circulars; that conditions of service cannot be framed by administrative circulars but must be framed by Regulations made under section 58 of the Act; and that, the impugned circular and seniority list violate their right to equal treatment in the matter of their service conditions and career. The Reserve Bank and the contesting respondents have joined issue with the petitioners on all these questions.
Turning to the first question, section 58(1) of the Reserve Bank of India Act, 1934 provides that:
"The Central Board may, with the previous sanction of the Central Government, make regulations consistent with this Act to provide for all matter for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act." Sub-section (2) of section 58 provides that in particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the matters mentioned in the various clauses of that sub- section. Clause (j) refers to "the constitution and management of staff and super nuation funds for the officers and servants of the Bank", while clause (r) refers to the subject: "generally, for the efficient conduct of the business of the Bank". Sub-sections (3) and (4) were inserted in section 58 by Act 51 of 1974. By sub-section (3), any regulation made under section 58 shall have effect from such earlier or later date as may be specified in it.
Sub-section (4) requires that every Regulation shall, as soon as may be after it is made by the Central Board, be forwarded to the Central Government which, in turn, shall cause a copy of the same to be laid before each House of Parliament. Thereafter, the 426 Regulation takes effect in accordance with the modifications, if any, made by the Parliament.
A side argument may be disposed of briefly. It was suggested on behalf of the petitioners, though faintly, that the power to frame service conditions is derived from clause (j) of section 58 (2) of the Act. It is impossible to accept this contention. That clause cannot be split up to read:
"the constitution and management of staff; and superannuation funds for the officers and servants of the Bank". It hardly makes any sense that way. What the clause means is: "the constitution and management of staff funds and superannuation funds for the officers and servants of the Bank". An important subject like the service conditions of the staff could not have been provided for in such a dubious and indirect manner. Nor indeed, could it have been described as "constitution and management of staff." A rule of seniority cannot properly fall under such a head. We endorse the view taken by the Calcutta High Court in Reserve Bank Employees Association v. Union of India(1) that section 58 (2) (j) refers to staff funds and superannuation funds and that it cannot comprise service conditions.
But, the provisions of sub-section (2) of section 58 cannot be taken to be exhaustive of the power of the Central Board to make regulations. It is well-settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power. (See Emperor v. Shibnath Barerjee;(2) Om Parkash v. Union of India(3). Therefore, the ambit of the general power conferred by sub-section (1) cannot be attenuated by limiting it to matters specified in sub- section (2) of Section 58.
Section 58 (1) of the Act confers power on the Central Board of Directors of the Bank to make regulations in order to provide for all matters for which provisions is necessary or convenient for the purpose of giving effect to the provisions of the Act. It seems to us clear that it is not only convenient but manifestly necessary to provide for the service conditions of the Bank's staff in order to give effect to the provisions of the Act. The Act was passed in order to constitute a Bank for achieving economic purposes of the 427 highest national importance: regulating the issue of Bank notes, keeping reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage. It is, in our view, not open to any question either on the basis of reason or authority that the power to provide for service conditions of the staff is at least incidental to the obligation to carry out the purposes for which the Bank was constituted. As observed in Armour v. Liverpool Corporation,(1) "To assist in removing from the minds of its employees the fear of an unprotected old age, to foster their happiness and contentment and to procure their good and efficient service, these are objects which, even if economic considerations alone count, are incidental, if not vital, to the proper carrying on of any undertaking as well by a municipal as any other corporation." The doctrine of ultra vires in relation to the powers of a statutory corporation has to be understood reasonably and so understood, "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires." (See Attorney-General v. Great Eastern Ry. Co.(2) The Central Board has, therefore, the power to make service regulations under section 58 (1) of the Act.
Shri Nariman pleads for such a power but his purpose in doing so is to urge that section 58 (7) is the sole repository of the power of the Central Board to provide for the conditions of service of the Bank's staff. He contends that statutory corporations like the Reserve Bank of India have no inherent or residuary powers and that they must seek and find their powers and obligations in the Charter of their creation Therefore, the argument proceeds, it is imperative that regulations governing terms and conditions of service of the Bank's staff must be framed under section 58 (1) only and cannot be framed by administrative circulars issued in the exercise of any non-statutory power authority.
In support of this submission, reliance is placed by the learned counsel on the statement of law contained in paragraphs 1326 and 428 1333 (pages 775 and 779) of Halsbury's Laws of England, Fourth edition. In paragraph 1326 it is stated that:
"Corporations may be either statutory or non- statutory and a fundamental distinction exists between the powers and liabilities of the two classes.
Statutory corporations have such rights and can do such acts only as are authorised directly or indirectly by the statutes creating them; non-statutory corporations, speaking generally, can do everything that an ordinary individual can do unless restricted directly or indirectly by statute".
Paragraph 1333 says that:
"The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to, or consequential upon, these things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited." There is no doubt that a statutory corporation can do only such acts as are authorised by the statute creating it and that, the powers of such a corporation cannot extend beyond what the statute provides expressly or by necessary implication. If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken to be prohibited. This cannot, however, produce the result for which Shri Nariman contends. His contention is not that the Central Board has no power to frame staff regulations but that it must do so under section 58 (1) only. On that argument, it is material to note that section 58 (1) is in the nature of an enabling provision under which the Central Board "may" make regulations in order to provide for all matters for which it is necessary or convenient to make provision for the purpose of giving effect to the provisions of the Act. This provision does not justify the argument that staff regulations must be framed under it or not at all. The substance of the matter is that the Central Board has the power to frame regulations relating to the conditions of service of the Bank's staff.
If it has that power, it may exercise 429 it either in accordance with section 58 (1) or by acting appropriately in the exercise of its general power of administration and superintendence.
The statement of law in Halsbury puts emphasis on the limitation on powers of statutory corporations in the light of the provisions of statutes under which they are constituted. From that point of view, the provisions of section 7 (2) of the Act are important. By that section, the general superintendence and direction of the affairs and business of the Bank are entrusted to the Central Board of Directors, which is empowered to exercise all powers and do all acts and things which may be exercised or done by the Bank. Matters relating to the service conditions of the staff are, preeminently, matters which relate to the affairs of the Bank. It would therefore be wrong to deny to the Central Board the power to issue administrative directions or circulars regulating the conditions of service of the Bank's staff. To read into the provisions of section 58 (1) a prohibition against the issuance of such administrative directions or circulars is patently to ignore the scope of wholesome powers conferred upon the Central Board of Directors by section 7 (2) of the Act. Indeed, this section brings the impugned circular and seniority list within the rule mentioned in Halsbury; they have the authority of the statute.
In this behalf, reliance is also placed by Shri Nariman on a decision of a Constitution Bench of this Court in Sukhdev Singh v. Bhagatram,(1) Ray, C.J., who spoke for three members of the Bench, observes in his judgment that the powers of statutory bodies are derived, controlled and restricted by the statutes which create them and that any action of such bodies in excess of their power or in violation of the restrictions placed on their powers is ultra-vires. The concurring judgment of Mathew, J. also contains observations to the same effect (see pages 628, 630 and 659 of the Report). This enunciation of law is to the same effect as in Halsbury and our answer is the same. While issuing the administrative circular governing the staff's conditions of service, the Central Board of Directors has neither violated any statutory injunction nor indeed has it exercised a power which is 430 not conferred upon it by the statute. The circular is strictly within the confines of section 7 (2).
So long as staff regulations are not framed under section 58 (1), it is open to the Central Board to issue administrative circulars regulating the service conditions of the staff, in the exercise of power conferred by section 7 (2) of the Act. In T. Cajee v. U. Jormanik Siem,(1) a District Council was constituted under the Sixth Schedule to the Constitution, for the United Khasi and Jaintia Hills District in the Tribal Areas of Assam. The rules in the Sixth Schedule empowered the District Council to make laws with respect to various matters regarding the administration of the District, including the appointment or succession of Chiefs and Headmen. No law was however made regulating such appointments. Even so, it was held by this Court that the District Council had the power to appoint or remove administrative personnel under the general power of administration vested in it by the Sixth Schedule.
Delivering the leading judgment of the Bench, Wanchoo, J., said that where executive power impinges upon the rights of citizens, it will have to be backed by an appropriate law;
but where executive power is concerned only with the personnel of the administration, it is not necessary that there must be laws, rules or regulations governing the appointment of those who could carry on the administration under the control of the District Council. The District Council had therefore the power to appoint officers by virtue of the fact that the administration was vested in it.
In B.N. Nagarajan v. State of Mysore(2) Rule 3 of the Mysore State Civil Services (General Recruitment) Rules, 1957 provided that recruitment to the State Civil Services shall be made by a competitive examination or by promotion and that the method of recruitment and qualifications shall be as set forth in the Rules specially made in that behalf. It was urged before this Court that no recruitment could be made to any service until the rules were made. That argument was rejected on the ground that it is not obligatory under the proviso to art. 309 to make rules of recruitment before a service can be constituted and that it was not necessary that there must be a law in existence before the executive is enabled to function. It is true that reliance was placed in that case on the provisions of art. 162, by which the executive power of a State extends to the matters with respect to 431 which the legislature of the State has power to make laws.
But the decision is useful for illustrating that the power to frame rules or regulations does not necessarily imply that no action can be taken administratively in regard to a subject matter on which a rule or regulation can be framed, until it is so framed. The only precaution to observe in the cases of statutory corporations is that they must act within the framework of their charter. Its express provisions and necessary implications must at all events be observed scrupulously.
It may bear mentioning that any action taken by the Central Board of Directors under section 7(2) is subject to the directions given by the Central Government under section 7(1) just as any regulation framed by it under section 58 is subject to the previous sanction of the Central Government.
In either case, the Central Board has to abide by the decision or directions of the Central Government. There can therefore, be no apprehension that, by taking action under section 7 (2), the Central Board may circumvent the condition on which the power conferred by section 58 can be exercised by it. The overall authority of the Central Government acts as a restraining influence on any action taken by the Central Board, whether it acts under one or the other provision of the Act.
Having seen that the Central Board has the power to provide for service conditions of the staff by issuing administrative circulars, the next question for consideration is whether the Staff Regulations of 1948 were issued under section 58 of the Act. The importance of this question lies in the fact that, quite clearly, if the 1948 Regulations are statutory, they cannot be altered by administrative circulars and, in that event, the impugned circular will not have the effect of superseding them.
Having considered the entire material on this subject including the correspondence that has transpired between the Reserve Bank and the Central Government, we find it difficult to take the view that the Staff Regulations of 1948 were framed in the exercise of power conferred by section 58. One fact which stands out in this regard is that whereas section 58 (1) envisages the making of regulations "with the previous sanction of the Central Government", the Regulations of 1948 do not purport to have been made with such sanction. Indeed, in so far as the ex facie aspect of the matter is concerned, the Regulations of 1948 do not purport to have been made under section 58 at all. It is true that this by itself is not conclusive because, failure to mention the source of power 432 cannot invalidate the exercise of power, if the power is possessed by the authority which exercises it. But, the common course of the manner in which the Central Board exercises its power when it purports to do so under section 58 is not without relevance and has an important bearing on the question under consideration. The Employees' Provident Fund Regulations of 1935, the Note Issue Regulations of 1935 the General Regulations of 1949, the Scheduled Banks' Regulations of 1951 and the Guarantee Fund Regulations, which were all framed under section 58, contain a preamble reciting that they were framed under that section and that they were framed with the previous sanction of the Central Government. By way of illustration, we may cite the preamble of the Reserve Bank of India General Regulations, 1949, which runs thus:
"In exercise of the powers conferred by section 58 of the Reserve Bank of India Act, 1934 (II of 1934) and in supersession of the Reserve Bank of India General Regulations, 1935, the Central Board of the Reserve Bank of India, with the previous sanction of the Central Government, is pleased to make the following Regulations..." It is significant that such a recital is conspicuously absent in the Regulations of 1948. That renders it safe and reasonable to accept the statement contained in the counter affidavit filed on behalf of the Reserve Bank by Shri Shamrao Laxman Jathar Deputy Manager in the Department of Administration and Personnel to the effect that the Staff Regulations of 1948 are not statutory in character, not having been made under section 58 of the Act of 1934. The rejoinder affidavit dated July 16, 1979 filed on behalf of the petitioners by Shri Jamnadas Gupta reiterates the contention that the Regulations of 1948 were framed under section 58 (1) with the sanction of the Central Government.
Support is sought to that contention from the correspondence annexed to the affidavit filed in support of the writ petition and the correspondence annexed to the rejoinder. Of particular importance is the statement contained in the 'Memorandum to the Central Board' dated January 21, 1949, submitted by the then Governor of Reserve Bank, Shri C.D. Deshmukh, on the subject of "Reserve Bank of India Regulations". That Memorandum contains a list of regulations which were made by the Central Board "with the approval of the Central Government". The very first item in the list is "Reserve Bank of India (Staff) Regulations". Having considered the correspondence bearing on the subject and particularly the aforesaid Memorandum, we see no reason to doubt 433 the contention of the Bank that the Regulations of 1948 were not framed under section 58 and that they were not made with the previous sanction of the Central Government. The then Governor of the Reserve Bank of India, Shri C. D. Deshmukh, a distinguished Economist and Civilian, was perhaps justified in assuming from the correspondence that the Central Government has no objection to the proposed regulations, which explains his statement, that they were made with the "approval" of the Central Government. But, it is one thing to infer that the Regulations had the approval of the Central Government since no objection was raised by it to the making of the regulations and quite another that they were made with its previous sanction. The supplementary affidavit dated March, 1980 which was filed on behalf of the Reserve Bank by Shri Pradeep Madhav Joshi, Deputy Manager in the Department of Administration and Personnel, has dealt fully with the correspondence on the subject of previous sanction of the Central Government to the Regulations of 1948. We are inclined to accept the statement contained in paragraph 9 of the said affidavit that the Memorandum of January 21, 1949 contains a "factual mistake" to the effect that the Staff Regulations, (which would include the Regulations of 1948) were made with the approval of Central Government. We therefore conclude that the Reserve Bank of India (Staff) Regulations of 1948 were not made under section 58 of the Act and that, in fact, the Central Board had not obtained the sanction of the Central Government to the making of those Regulations.
The High Courts of Bombay,(1) Calcutta and Delhi(2) have all taken the view that the Staff Regulations of 1948 are not statutory, not having been framed under section 58 of the Act. We endorse the correctness of that view.
Since the Staff Regulations of 1948 are in the nature of administrative directions, it was competent to the Central Board to alter or amend them by an administration circular. No lack of statutory powers is involved in that process. Under section 7 (2), the Central Board has the power to provide for service conditions of the Bank's staff by administration circulars, so long as they do 434 not impinge upon any Regulations made under section 58 of the Act.
It now remains to be considered whether the impugned Administration Circular, No. 8, dated January 7, 1978;
Office Order No. 679, dated April 27 1978; and the draft Combined Seniority List of officers prepared pursuant thereto, are violative of the petitioners' right to equality in the matter of their service conditions. The salient features of the impugned Administration Circular may be summarized thus:
(a) A common seniority and inter-group mobility is introduced simultaneously in all Grades of officers attached to Group I (Section A) and Groups II and III.
(b) The seniority of all officers is combined as on May 22, 1974, on the basis of their total length of service (including officiating service), in the grade to which they were then posted on a regular basis. In doing so, the existing inter se seniority of the officers in the respective groups is maintained and the subsequent supersessions for promotion or confirmation in the respective groups are suitably reflected. The date of confirmation is not taken into account for this purpose.
(c) The Circular covers all officers in Group I (Section A) and Groups II and III who were appointed to Grade 'B' prior to January 1, 1970 as well as officers in the higher grades 'C', 'D', 'E' and 'F'. The Circular does not cover officers in Sections B to L of Group I, technical officers in Group III and officers attached to Group IV.
(d) All promotions to Grade 'C' and above which were made on a provisional basis after January 1, 1976 are to be reviewed individually in order to ascertain as to which of the officers may be allowed to continue in the higher grade on the basis of their seniority and suitability.
Consequential adjustments are to be made in a phased and 435 gradual manner in order to ensure that the operational efficiency of the various departments and the Bank's requirements of a specialised staff of officers are not adversely affected.
(e) Officers promoted to higher grades prior to January 1, 1976 are to be allowed to retain their existing grades, though not necessarily the same posts, and their seniority is to be adjusted under a common seniority scheme.
(f) Officers appointed to officiate in the higher grade on a provisional basis on or after January 1, 1976 and who are allowed to continue in such grade on the basis of their seniority and suitability, are to be considered for confirmation in the normal course.
(g) Officers who are in a lower grade but who rank higher in seniority in the common seniority list than those who are already officiating or confirmed in the higher grade, are to be considered for promotion on the basis of their suitability.
(h) All future promotions to Grade 'C' and to the higher grades are to be made on the basis of the common seniority list, subject to selectivity.
(i) Wherever possible, the transfer of officers from one department or group to another in the same grade has to be encouraged in order to enable a broader diffusion of experience and to prepare a wider base for develop
