The Court explained the legal nature of the Office Memorandum dated 26.3.1970 regarding promotions for SC/ST officers, distinguishing it from reservation. It held that the petitioner was denied promotion due to not meeting the fitness criteria and no relief was granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition No. 7307 of 2004
Narayan Lal Bairwa ..Petitioner
vs.
1. Industrial Development Bank
of India and others ..Respondents
Shri R.L.Nerlekar for petitioner
Shri C.U.Singh i/b M/s Pamnani and Pamnani & Co.
for respondent no.1.
Shri R.C.Master for respondent no.2.
CORAM: A.P.SHAH AND
S.C.DHARMADHIKARI JJ
4th NOVEMBER, 2004
P.C.
1. We have heard the learned Counsel appearing for
the parties. Perused the affidavit of Deputy
General Manager of I.D.B.I.
2. It is settled position of law that as far as
promotions to Grade B and Grade C are concerned,
there is no reservation in favour of scheduled
caste/scheduled tribe but they are entitled to the
concessions contained in para 2 of the Office
Memorandum (OM) dated 26th March, 1970 issued by
the Ministry of Home Affairs. This OM has been
interpreted by the Supreme Court in the case of
National Federation of S.B.I. and others Vs.
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Union of India and others; (1995) 3 SCC 532. The
Court has explained the meaning and nature of
concessions contained in the memorandum as follows:
We may now turn to the meaning and nature of
the ’concession’ contained in the Office
Memorandum dated 26.3.1970. We have already
set out the significant features of the said
concession contained in para 2 of Office
Memorandum in para 5 of this judgment. We
shall now explain what exactly does the
formula mentioned under (c) in para 5 of our
judgment mean? For the sake of convenience,
we shall repeat the formula.
"In promotions by selection to posts within
Class I...the Scheduled Caste/Scheduled
Tribes officers who are senior enough 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 the list provided they are not
considered unfit for promotion."
It is necessary to reiterate that the said
Office Memorandum does not provide for
reservation as contemplated by Article 16(4)
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of the Constitution of India; it only
provides for a concession which the state
can always provide under Article 16 as
explained in Indra Sawhney Vs.Union of
India. The concession is evidently designed
and intended to help the Scheduled
Caste/Scheduled Tribes officers obtain
promotions which they may not otherwise get.
Towards that purpose, it is provided that
those Scheduled Castes/Scheduled Tribes
Officers who are senior enough in the zone
of consideration so as to be within the
number of vacancies available shall be
included in the select list provided they
are not considered unfit for promotion. The
said formula has been explained with
reference to an illustration in the letter
dated 7.11.1983, referred to above. Be that
as it may, we shall elaborate and explain
it. Take a case where twenty vacancies
arise which have to be filled by promotion
by selection, according to the relevant
rules, thrice the number of vacancies are to
be considered - in other words, a list of
sixty eligible candidates has to be prepared
who alone will be considered for promotion
to the said twenty post, which list is but
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another name for "the zone of consideration"
referred to in the Office Memorandum;
(ordinarily, this list is prepared on the
basis of senisority-cum-eligibility); if
any Scheduled Caste/Scheduled Tribes
officers happen to fall within Serial Nos.1
to 20 in the said list, they shall be
included in the select list without further
ado, i.e. without subjecting them to the
process of selection and without comparing
their merit and grading with the merit and
grading of the other officers within the
zone of consideration. But for the said
concession, it may be noted, these Scheduled
Caste/Scheduled Tribes officers may not get
selected even though they may fall within
Serial Nos. 1 to 20 in the zone of
consideration for the reason that the
candidates below Serial No.20 may have a
better record of service and grading than
them. Since the promotion is on the basis
of selection, the more meritorious (the
officer having better grading) will get
selected notwithstanding his position in the
zone of consideration. It appears quite
obvious that candidates belonging to
Scheduled Caste/Scheduled Tribes were not
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getting selected by following the normal
procedure of selection and hence, the said
concession was provided. According to it,
kit is enough if a Scheduled Caste/Casted
Tribes candidate comes within Serial Nos. 1
to 20 in he zone of consideration in the
illustration given above. He would be
automatically included in the select list,
even though his grading on the basis of his
record and performance may be far inferior
to the grading of the other officers below
Serial No. 20 in the zone of consideration
provided, ofcourse, such Scheduled
Castes’/Scheduled Tribes’ officer is not
found unfit for promotion.So far as
Scheduled Castes/Scheduled Tribes candidates
below Serial No.20 in the zone of
consideration are concerned, they will,
ofcourse, be not entitled to any such
concession and, therefore,d have to be
compete with other candidates within the
zone of consideration. It is equally clear
that the OC candidates between Serial Nos.
1 to 20 in the zone of consideration will
not be entitled to the aforesaid concession;
they will have to compete with all others in
the zone of consideration (S.Nos. 1 to 60)
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for selection to the said vacancies. This,
in short, is the concession. Since it is
only a concession and not a reservation, the
several letters of the Ministry of Finance
referred to above, viz. letters dated
30.5.1981, 7.11.1983, 25.3.1987 and the
clarificatory Office Memorandum dated
1.11.1990 repeatedly say that while there is
no reservation for Scheduled Caste and
Scheduled Tribes in this behalf (i.e. in
the matter of promotion by selection to
posts; within Class I) a concession is
provided to them. It is because of this
circumstance again that para 9.2 in the 7th
Edn. of the Brochure on the subject of
reservation for Scheduled Caste and
Scheduled Tribes in services says that while
there is no reservation, the Scheduled
Caste/Scheduled Tribes candidates are
entitled to the concession mentioned
therein."
3. The respondents have averred in their affidavit
that for the purpose of extending the concessions
to the Scheduled Caste/Scheduled Tribes, respondent
no.1 has used the rating system for determining the
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fitness for promotions in the case of promotions to
Middle Management Grade Scale III i.e. upto Grade
C. This rating is based on two parameters, the
Performance Appraisal Rating (PAR)l which is
summarized from the annual reports of the officer
for the last 5 years, and marks obtained in an
interview. The assignment of marks for the PAR
rating is done by the reporting and reviewing
officer of the concerned officer and interview
marks are given by the Selection Committee, based
on the performance of the Officer(s) in the
interview, which as stated above includes a senior
SC/ST officer. An officer is deemed to be "unfit
for promotion" if the officer scores less than 2.01
out of 5.1 marks in the interview, or less than
2.50 out of 5 marks in the average PAR ratings for
the last five years, or less than 5.52 marks in the
aggregate out of 10 marks. This system of rating
as above, as well as in the minimum marks in
individual heads in the aggregate, are uniformly
applicable to all eligible officers, whether
belonging to the SC/ST or not. However, even here
a further concession in the form of grace marks in
the marks obtained in an interview is given by the
Respondent No.1 to its SC/ST officers.
4. The respondents have also produced before us a
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chart to show that adequate representation is being
given to the scheduled caste and scheduled tribes
in the promotional posts. The petitioner’s case
was considered by respondent no.1 for promotion
first in 1995, 1996 and thereafter except for the
years 1998-99 and 1999-2000. However, the
petitioner was found unfit by different selection
committees for promotion to Grade C. It is also
pointed out to us that this Committee included
Senior ST/SC officer. In the above circumstances,
it is not possible to grant any relief to the
petitioner. Petition is accordingly disposed of.
3 issues framed by the court
Whether the Office Memorandum dated 26.3.1970 provides for reservation or merely a concession under Article 16.
Whether the petitioner is entitled to the concession provided for SC/ST officers under the Office Memorandum.
Whether the petitioner's claim for promotion to Grade C warrants any relief.
Colour shows how this judgement treated each authority
National Federation of SBI and others vs Union of IndiaReferred¶12
National Federation of S.B.I. and others Vs. Union of India and others; (1995) 3 SCC 532 · Who else cites this
Indra Sawhney vs Union of IndiaReferred¶17
Indra Sawhney vs. Union of India
3 provisions across 2 enactments
Narayan Lal Bairwa
Industrial Development Bank of India
A.P. Shah
S.C. Dharadhiakari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court