ORDER
1. The petitioner has sought for a writ in the nature of mandamus restraining the 3rd respondent-Karnataka Industrial Areas Development Board (hereinafter referred to as 'the Board') from filling up the post of Development Officer, treating the said post as a backlog vacancy and for a further direction to fill up the said post in accordance with the provisions of the Karnataka Industrial Areas Development Board Cadre and Recruitment Regulations (hereinafter referred to as 'the Regulations') and for other reliefs.
2. The petitioner joined the services in the Board on 10-2-1982 as Assistant Engineer. Thereafter, the petitioner, Sri M. Ramakrishnappa and the 4th respondent were selected and promoted as Deputy Development Officers in the pay scale of Rs. 2,200-4,070 by an order dated 19th October, 1989. In the select list the petitioner is at serial No. 1, whereas the 4th respondent is at Sl. No. 3. Consequent on the promotion, the petitioner and respondent 4 reported for duty on 20-10-1989 and 16-11-1989 respectively. The appointment of the petitioner and respondent 4 on promotion was confirmed by the Board on completion of their probationary period satisfactorily.
3. As per the Regulations the next promotional post is that of Development Officer. The method of recruitment to the Development Officer as per the Regulations is as follows.-
'5. Development Officer:
(a) By Deputation 50% from Public Works Department
of the State Government from the cadre
of Executive Engineer;
(b) By Promotion (a) 25% from the cadre of Deputy Development
Officers who have passed departmental
examination in Public
Works Engineering, Accounts Higher,
General Law (Parts I and II) and Public
Works Higher and possessing a Degree
in Civil Engineering of recognised
University with minimum service of 4 years
in the cadre of Deputy Development Officer.
(b) 25% from the cadre of Deputy Development
Officers who have passed Departmental
Examination in Public
Works Engineering, Accounts Higher,
General Law (Parts I and II) and Public
Works Higher, and possessing a Diploma
in Civil Engineering with minimum
service of 8 years in the cadre of
Deputy Development Officer'.
4. The Board issued a statement which is produced as Annexure-D, indicating the backlog vacancies to be filled up in various cadres. As per this statement the total number of the posts of Development Officers is shown as 4. Out of these 4 posts 3 are vacant and one is reserved for S.C. This statement has made the petitioner to file this petition for an order restraining the Board from filling up the post of Development Officer.
5. Sri B.G. Sridharan, learned Counsel for the petitioner submitted that the notifications issued by the State Government in the matter of reservation of posts relating to services in the State have no application in respect of the services under the Board as the service conditions of the employees of the Board are governed by the Regulations framed by the Board. He has further contended that from out of the four posts of the Development Officers since three have already been filled up, reservation made in respect of one post for Scheduled Caste amounts to 100% reservation and therefore it is not permissible in view of the law laid down by the Supreme Court in the case of Dr. Chakradhar Paswan v State of Bihar and Others. It is nextly contended that in the absence of any classification of services of the Board as made in the Karnataka Civil Services (Classification Control and Appeal) Rules, 1957 (hereinafter referred to as 'the Rules 1957'), no reservation shall be made assuming that the Government notifications regarding reservation in promotional vacancies is applicable to the services of the Board. It is further submitted that the post of Development Officer under no circumstances could be treated as the lowest category of Class I post for the purpose of reservation.
6. The learned Counsel for the Board and Sri O. Sreedharan, learned Counsel for respondent 4 justified the step taken by the Board in reserving one post of Development Officer for Scheduled Caste. It is in their submission that the State Government issued Government Order No. DPAR 29 SBC 77, dated 27th April, 1978 reserving posts at 15% for Scheduled Castes and 3% for Scheduled Tribes in promotional vacancies in all cadres upto and inclusive of lowest category of Class I post in which there is no element of direct recruitment and if there is an element of direct recruitment such element of direct recruitment does not exceed 66 2/3%. The said Government Order provides for filling up of the vacancies reserved for Scheduled Castes and Scheduled Tribes by rota-tion as indicated in annexures to the said order. The points specified for rotation in the said annexure were subsequently modified by another Government Order. These orders are applicable to all companies, statutory boards and corporations whether fully owned or partly owned by the Government. Again the Government issued Official Memorandum in No. DPAR 29 SBC 77, dated 29-7-1978 stating that the lowest category post means the lowest Class I in each service and/or Department and not the lowest Class I post in terms of general classification of post made in the Rules, 1957. Again the Government issued another Government Order No. DPAR 50 SBC 92, Bangalore, dated 17-4-1993 after the decision of the Constitution Bench of the Supreme Court in Indira Sawhney and Others v Union of India and Others, dated 16-11-1992, directing all institutions receiving grants or aid from the Government, companies, statutory boards, corporations etc., whether fully owned or partly owned by Government, shall also be required to provide reservations to persons belonging to Scheduled Castes and Scheduled Tribes, if the scheme of providing reservation in promotion is in vogue on the date of judgment of Supreme Court on 16th November, 1992, and it should be continued for a further period of five years subject to the condition that the reserved categories (Scheduled Caste and Scheduled Tribe) are not adequately represented in a particular service.
7. It is submitted on behalf of the respondents that in view of these notifications issued by the Government reserving certain posts in the promotional cadre and also in view of the fact that the said notifications are made applicable even in respect of Companies and Statutory Boards, the Board is justified in reserving the post of Development Officer. It is further submitted that since there are four posts of Development Officers reservation of one post in the said cadre does not amount to 100% reservation. In reply to the 3rd contention raised by the learned Counsel for the petitioner, it is submitted that the post of Development Officer is the lowest category of Class I post and therefore, the Board is right in reserving one post for Schedule Caste.
8. The learned Counsel for the respondents further submit that Government has issued notifications under Article 16(4) of the Constitution reserving certain posts in favour of persons belonging to Scheduled Castes and Scheduled Tribes in promotional vacancies as it is of the view that there is no adequate representation in the services under the State. Further, the State Government has directed all the companies, statutory boards, etc., to make reservation in favour of Scheduled Castes and Scheduled Tribes in promotional vacancies. The State has enacted a law called 'Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments etc.,) Act, 1990 (hereinafter referred to as 'the Act, 1990'). Section 4 of the Act, 1990 reads thus.--
'4(1) After the appointed day, while making appointments to any office in a civil service of the State of Karnataka or to a civilpost under the State of Karnataka appointments or posts shall be reserved for the members of the Scheduled Castes, Scheduled Tribes and other Backward classes to such extent and in such manner as may be specified from time to time in the order made by the Government under clause (4) of Article 16 of the Constitution of India.
(2) The provisions of the said order made under clause (4) of Article 16 of the Constitution shall be deemed to be an order made under this Act and shall mutatis mutandis apply to a service or post in an establishment in public sector.....'.
The word 'establishments in public sector' is defined under Section 2(3) of the Act, 1990, which reads as follows.--
'(3) 'establishments in public sector' means (i) a co-operative society registered or deemed to have been registered under the Karnataka Co-operative Societies Act, 1959;
(ii) an educational institution established or maintained or aided by the State Government;
(iii) a Government company within the meaning of Section 617 of the Companies Act, 1956;
(iv) a local authority;
(v) a statutory body or corporation established by or under a State or Central Act, owned or controlled by the State Government;
(vi) a University established or deemed to have been established by or under any law of the State Legislature'.
Sub-section (2) of Section 4 of the Act 1990 provides that any order made under clause (4) of Article 16 of the Constitution shall be deemed to be an order made under this Act and shall mutatis mutandis apply to a service or post in the establishment in public sector. As per the definition establishments in public sector includes local authority statutory body or corporation. The Board has been established and constituted under Sections 5 and 6 of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as 'the Act 1966') and therefore the Board is a statutory Corporation which comes within the expression 'State' as defined in Part III of the Constitution.
9. The Act, 1966 enables the State Government to issue directions of general nature to carry out the purposes of the Act and the said directions are binding on the Board. As stated earlier, the State Government has issued notifications under Article 16(4) of the Constitution reserving certain posts in favour of Scheduled Caste and Scheduled Tribe and issued directions to all the statutory corporations and bodies to act upon such directions. Though the Regulations of the Board do not provide for reservation of post in promotional vacancies, since the notifications referred to above are made applicable to the Board, the Board is required to reserve the post in promotional vacancies. Hence, the argument of the learned Counsel for the petitioner that the Government Notificationsissued in respect of the services of the State have no application in respect of the services under the Board cannot be accepted.
10. The contention of the petitioner is that the reservation of one vacant post of Development Officer for Scheduled Caste amounts to 100% reservation and it is opposed to the law laid down by the Supreme Court in Dr. Chakradhar Paswan's case, supra. For the purpose of considering whether there is 100% reservation or not, what is to be taken is the total number of posts in the cadre and not the vacancy. Admittedly, in the case on hand there are four posts of Development Officers. If that is so, reservation of one post from out of 4 posts does not amount to 100% reservation.
11. The real controversy that arises for consideration in this case is.--
Whether the Board is justified in classifying the post of Development Officer as a lowest category of Class I post for the purpose of reservation in favour of Scheduled Caste as per the Government Order?
12. Rule 5 of the Rules 1957, provides for classification of services under the State. Under this Rule, the civil services under the State have been classified into four classes of services on the basis of pay scales of different grades. This classification by amendment has been renamed as Groups 'A', 'B', 'C' and 'D'. Sub-rule (3) of Rule 5 of the Rules 1957 states that civil services Group 'A', shall consist of posts carrying the scales of pay of Rs. 2,200/- to Rs. 4,070/- and above. This pay scale is subsequently revised to Rs. 2375-4450 by an amendment introduced with effect from 13-7-1994. Group 'A' consist of several categories with different pay scales the minimum of which is Rs. 2200-4070. As per the Government notification referred to above, reservation of posts in favour of Scheduled Castes and Scheduled Tribes in promotional vacancies at 15% and 3% respectively to be filled up by promotion in all the cadres up to and inclusive of lowest category of Group 'A' (Class I post) in which there is no element of direct recruitment and if there is an element of direct recruitment, such element of direct recruitment does not exceed 66 2/3%, i.e., up to the cadre of post carrying the pay scale of Rs. 2200-4070 and not beyond. The Board has not classified its services similar to the classification made under Rules 1957, according to the pay scale in its Regulations. The Board in its Regulations divided its services into four grades such as Grades 'A', 'B', 'C' and 'D'. The post of Development Officer is one of the categories of posts coming under Grade 'A', carrying the pay scale of Rs. 3170-4430, as per the revision of pay scale in the year 1987. The said pay scale has now been revised to Rs. 3300-5300.
The categorisation of posts coming under Grade 'A' of the Regulations of the Board is as follows:
GRADE 'A'
Executive Member,Chief DevelopmentOfficer
Deputation from Commerceand Industries Department -- Rs. 4550-125-
5300-150-5600.
Controller of Finance
On contract/deputation,Scale of pay as fixed by the Board from time to time.
Special DeputyCommissioner
As prescribed by the Governmentin Revenue Department.
Development Officer
Rs. 3170-90-3350-120-4430.
Executive Engineer(Elecl.)
Deleted.
Accounts Officer
Rs. 3170-90-3350-100-3950-120-4430By deputation from Accountant General Office.
Secretary
Rs. 3170-90-3350-100-3950-120-4430.
13. From the above, it is seen that there are seven categories of posts coming under Grade 'A', and the lowest of which is the post of Secretary. If all the posts coming under Grade 'A' is to be treated as Group 'A' (Class I) as classified under Rules 1957, the lowest category of post in Class I is the post of Secretary. Therefore, as per the Government Order the reservation in promotional vacancy could be made only in the cadre of Secretary which is the lowest category of Grade 'A' post.
14. The learned Counsel appearing for the Board and the contesting respondent submitted that the post of Development Officer belongs to the Department of Engineering and in this Department, the Development Officer being the lowest category of post of Class I as per the Government Order relating to the reservation of post in the promotional vacancies, the Board is justified in reserving one post for Scheduled Caste.
15. In order to consider this contention, it is useful to refer to the Regulations governing the service conditions of the Board in respect of Department of Engineering in the Board. As per the Regulations, the cadre of Junior Engineer is lowest carrying the pay scale of Rs. 1400-2750. The next promotional cadre from the cadre of Junior Engineer is Assistant Engineer carrying the pay scale of Rs. 1900-3650. The next promotional post from the cadre of Assistant Engineer is Deputy Development Officer carrying the pay scale of Rs. 2200-4070. The next promotional post is Development Officer carrying the pay scale of Rs. 3170-4430 from the post of [Assistant Engineer]. If the classification of the posts were to be made as per the pay scales as classified under the Rules 1957, the Deputy Development Officer's post is the lowest category of post in Class I. Therefore, the Board can reserve the promotional vacancies in the cadre of Deputy Development Officer, which is the lowest category of post in Class I in the Department of Engineering of the Board.
16. It is submitted by the learned Counsel for the Board and the 4th respondent that the Government, in its notification dated 3rd December,1990, extended the benefit of reservation of posts in the cadre of Executive Engineers in the Public Works and Irrigation Department. It is further submitted that since the post of Executive Engineer is equivalent to the post of Development Officer the Board is justified in reserving one post in the cadre of Development Officer for Scheduled Caste. The reference to Government Order is made in the statement of objections filed in W.P. No: 19626 of 1993, the copy of which is produced as Annexure-G in the said petition. The above said Government Order referred to above reads as follows.--
'PROCEEDINGS OF THE GOVERNMENT OF KARNATAKA
Subject: Reservation for persons belonging to Scheduled
Caste/Scheduled Tribe under Article 16(4) of the Constitution
of India in promotion to the post of Executive
Engineers in the Public Works and Irrigation
Department -- Provision for reservation -- Orders
thereon.
Read: 1. G.O. No. DPAR 29 SBC 77, dated 27-4-1978;
2. O.M. No. DPAR 29 SBC 77, dated 1-6-1978;
3. O.M. No. DPAR 29 SBC 77, dated 24-7-1978;
4. G.O. No. DPAR 22 SBC 79, dated 30-8-1979;
5. Circular No. DPAR 5 SBC 80, dated 19-1-1980.
PREAMBLE:
In Government Order dated 27-4-1978 and O.M. dated: 24-7-1978 read at (1) and (3) above, provision has been made for reservation in promotion to the persons belonging to SC ST under Article 16(4) of the Constitution of India at 15% and 3% respectively of vacancies in all cadres up to and inclusive of the lowest category of Class I (now Group 'A') post in the service or department in which there is no element of direct recruitment and if there is an element of direct recruitment, such element of direct recruitment does not exceed 66 2/3%. Roster annexed to the G.O. dated 27-4-1978 was modified and substituted to the New Roster, annexed in G.O. dated 30-8-1979 read at (4) above. The manner in which these orders governing reservation in promotion are to be implemented have been elaborately made clear in other Government Orders, Official Memorandum and Circulars read above.
On a demand made by the employees belonging to SC ST in the Public Works and Irrigation Department to extend the policy of reservation in promotion up to the cadre of Executive Engineers, in the Public Works and Irrigation Department, Government have examined the question in great detail and come to the conclusion that the representation of SC ST in the cadre of Executive Engineers is for a short period and that to, to the optimum level of 15% and 3% respectively. Government, havetherefore, considered necessary to extend the benefit of reservation in promotion to the level of Executive Engineers as a temporary measure to bring it up to the required per centage.
GOVERNMENT