A.R. Lakshmanan, J.
1. All India Insurance SC/ST Employees' Action Committee which is a registered body under the Societies Act, is the petitioner in the writ ptition and respondent in the writ appeal. The Writ petition was filed for a mandamus direct ing the respondents/the General Insurance Corporation of India, Bombay and four others, implement the Reservation Policy in promtions in Class-I category for SC and ST Officers t in the respondents Insurance companies in accordance to the Art. 16(4A) of the Constitution c of India.
2. The above prayer was amended by an order of this Court dated August 8, 1997 in t W.M.P. No. 19252/96 as follows :
'Writ of Mandamus or any other appropriate Writ order or Direction in the nature of a Writ, directing the respondents to reserve the post for SCIST employees in Class-I category in the Respondents 2 to 5 insurance companies in accordance to Official Memoranclums issued by the Government of India, dated December 23, 1974, February 25, 1976, September 21, 1988, April 25, 1989, February 8, 1990, June 27, 1990, August 19, 1993 and July 27, 1995 and direct the Respondents to discharge the public duty enshrined in Article 46 of the Constitution of India and pass such further or other orders...
3. The parties to this action will be referred to a petitioners and respondents with reference to their rank in the writ petition. The case of the petitioners in short are as follows : The SC/ST employees in the respondent companies are entitled to get 22 % as reservation tor promotion (18 % for SC and 4 % for ST). According to the petitioners, the respondent insurance corporations in spite of their repeated requests deliberately ignoring the directions and instructions and also the requests and thereby causing hardship and inconvenience to the employees. It is also alleged that the respondent corporations though used to declare the vacancies and specify the number of posts reserved for the SC/ST against the total declared promotional vacancies, have now not declared the promotional vacancies etc., even after the constitutional 77th Amendment by which the reservation in the natter of promotion to any class or classes of post in the service in favour of the SC/ST were ntroduced. BY their letter dated November 14, 1995, the action committee, after referring to he 77th Amendment of the Constitution mending Art. 16 paving way for reservation to SC/ST officers in Class-I promotions, requested the Chairman of the General Insurance Corporation of India Bombay to impl ment to reservation policy in promotion within Class-I aacategory for SC/ST Officers in the future promotional ezercise as per the above amendment. They further requested the Chairman to honour the constitutional rights and to issue instructions to all the subsidiaries to implement the reservation policy to clear the back-log in the institution. Again, by their communication dated April 18, 1996, the attention of the Managing Director (personnel) of the General Insurance Corporation of India was drawn to the 77th Amendment of the Constitution. In the said letter it is stated that if the respondent corporation has not received suitable instruction from the Government by that time on the reservation policy for Class-I Officers, the action committee may be informed so as to enable them to pursue the matter with the approprite authorities. Thus, it is seen, the whole basis for the claim of the petitioners is in pursuance of the 77th Amendment of the Constitution amending Article 16(4A). Inthis context, we may usefully extract art. 16 as follows :
'16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this Article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment for appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or union territory, prior to such employment or appointment.
(4) Nothing in this Article shall prevent the State from making any provision for the reservation of appointment or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the Services under the State.
(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
(5) Nothing in this Article shall affect the operation of any law which provides that the is incumbent of an office in connection with the affairs of any religious or denomination institution or any number of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
Article - 16 provides that there shall be equality of opportunity in matters relating to employment or appointment to any office under the State. Article 16(4) provides that nothing in that Article shall prevent the State from making any provision for the reservation of appointments or ports in favour of any backward class of citizens which, in the opinion of the State is not adequately represented in the services under the State. Clause (4A) may be noticed in the Pnt context. The said clause (4A) was inserted by the Constitution (77th Amendment) Act, 1995 with effect from June 17, 1995 and the said clause (4A) enables the State in making any provision for reservation in matters of promotion to any class or classes of post in the service of the State in favour of SC and ST, which, in the opinion of the State, are not adequately represented in the services under the State. Clause (4) only permits the reservation for backward class of citizens who are not in the opinion of the State, adequately represented in the services of the State. It does not permit reservation to any person who does not belong to the category of backward classes, nor does it enable the State to reserve posts on communal lines. Clause (4) of Art. 16 is wide enough to include not only reservation but also relaxation of so standard at competitive examinations, for member of backward classes, or preferences or exemptions which may be regarded as ancillary to reservation. The grievance of the petitioner appears to be that their claim for reservation for promotion pursuant to the amendment to Art. 16(4A) even though they are eligible for promotion, has not been considered and because of the non-consideration of their lawful claim, they will be deprived of their long awaited to promotional opportunities. The above is the gist of the claim made by the petitioners.
4. The above writ petition was resisted by the respondent coporations. According to thein, is there is no reservation policy for promotion to Class I officers for SCIST as alleged in the writ petition. The writ petition is based on a niis-apprehension that instructions have been issued b the Central Government for reservation for SC ao and ST officers in Class I category. It is therefore specifically stated that no instruction or directions had been issued by the Central Govermnent in regard to reservation for SCIST officers in Class I category. By virtue of the 77th Constitutional Amendment, Clause (4A) has been introduced in Art. 16 enabling the State from making provision for reservation in matters of promotion to any class or classes of posts in service under the State in favour of SC/ST which in the opinion of the State are not adequately represented in the services under the State. Therefore, the State has to be subjectively satisfied on objective materials that SC/ST are not adequately represented in officers category in insurance companies. Thereafter, the State has to instruct the respondents to follow reservation policy for SC/ST in Class I category. It is %ecifically stated that the respondents till now ve not received any such instructions from the Government of India. They have also denied the averments made in the affidavit that the respondents are deliberately not considering the claim for reservation in promotional posts. It is stated that the respondents who are Government companies, has been following the directions issued by the Government of India in regard to the categories class II/III and IV employees.The maintainability of the writ petition has also been raised as a point in the counter affidavit. With regard to the prayer for a writ of mandamus to direct the respondents to implement the reservation policy, it is replied that there cannot be any direction to the respondent companies to comply With a policy or guideline, which is not in existence and furthermore as the respondent companies have also not failed to adhere to any s existing rule or guideline. Therefore, the respondents contended that the prayer of the petitioner to issue 'mandamus'cannot be considered or granted and the same deserves to be rejected.
5. In the light of the above pleadings, the following three questions would emerge for our consideration :
1. Whether any direction to the respondent is companies/ Corporations, to comply with the policy or guideline which is not in existence can be issued in the present writ petition
2. In the absence of any proof as to the respondent companies/corporations having failed to adhere to any existing rules or guidelines, whether such a prayer can be maintained
3. Whether the writ petition is maintainable in law
6. We have carefully gone through the affidavit, counter affidavit and other documents annexed, to the typed set and have given our anxious consideration for the questions at issue. With regard to the prayer in the main writ petition (as amended), we are of the view that seeking a mandamus directing the respondents to implement the reservation policy for promotion of Class-I category for SC/ST Officers in the respondent corporations under Art. 16(4A) of the Constitution of India, cannot at all be countenanced, since there is no reservationyolicy of promoting any Class-I officers of SC/ST as alleged in the writ petition. The writ petition, in our opinion, is based on a misapprehension that instruction has been issued by the Central Government for reservation for SC/ST persons in the Class-I category. It is the categorical stand of the respondents that no such instruction has been issued by the Central Government. By virtue of the 77th Amendment of the Constitution, clause (4A) above noticed in Art. 16 enabling the State from making provisions for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the SCIST which, in the opinion of the s State, are not adequately represented in the service under the State. Therefore, the condition precedent for issuing memorandum by the State is that the State has to be subjectively satisfied on objective materials that SC/ST are not lo adequately represented in officers category in Insurance Corporations. Thereafter, the State has to instruct the respondents to follow reservation policy for SCIST in Class-I category, But till now no such instruction has been issued by is the Government of India. It is also the specific stand of the respondent corporations that they are strictly following and complying with the reservation policy issued by the Government of India in regard to categories Class II, III and IV employees, The promotion within Class I category is made by the process of selection and there is no reservation for promotion by selection within Class-I. However, SC/ST 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 that list provided they are not unfit for promotion. This is commonly known as protection clause for 30 SCIST in the matter of promotion in Class-I category. We are therefore of the view that the 77th Amendment as it does not provide for reservation for SCIST officers in Class-I category which is filled by the process of selection and the reservation policy has to be announced by the Government in the light of the amended Art. 16(4A). In exercise of the powers under Art. 338 of the Constitution, the National Commission for SC/ST, constituted under the said Article has informed the Liaison Officer of the General Insurance Company that by virtue of the Constitution (77th Amendment) there is scope for introduction of reservation for SCIST in posts filled by promotion within Group-A provided the Government of India issue suitable instruction in this regard. The above reply was sent in response to the letter dated December 14, 1995 written by the Liaison Officer of the first respondent company, Mumbai. The above communication makes it clear that the writ petitioners cannot claim reservation in Class I posts filed by promotion unless suitable instructions are issuer by the Government of India.
7. Mr. M. Venkatachalapathy, learned senior counsel appearing for the petitioners seeks reservation to the extent of 22 % on behalf of the petitioners for promotion in Class-I category for SCIST officers. We have carefully gone through the averments in the writ petition. The alleged grievance in the writ petition is that the, reservation for promotion for SC/ST officers within Ciass-I category is not given. The reed pursuant to 1972 and their promotion poli-is ic received trom time to time from the Union of India. We failed to understand as to why the Union of India, which is a necessary party to the writ petition has not been impleaded as a party/ respondent in the writ petition. The prayer seeking reservation to the extent of 22% for promotions in Class-I category cannot at all be considered as of now since there is no such reservation and what is relied on by the petitioners is only Art. 16(4A) of the Constitution. Art. 16(4A) is only an enabling provision for the State to make any provision for. reservation in matters of promotion to any class or classes of posts. The respondent, have also submitted in their counter in W.M.P. No. 11626/96 in W.P. No. 8166/96 that subsequent to the introduction of Art. 16(4A) by the 77th Amendment to the Constitution on July 17, 1995, the Union of India has thereafter not made any rovision for reservation in promotions for SC/ST officers to any post in respect of Class-I category. In the said counter, it is also reiterated that the promotions within the Class-I category are made by the process of selection and the SCIST officers who are senior enough in the zone of consideration for promotion so as to be within the number vacancies for which the select list has to be drawn up are considered provided they are not unfit for promotion. This protection for SC/ST officers is provided under the guidelines and administrative instructions relating to the promotion policy for officers and the same is also in line with the Brochure provisions.
8. As rightly pointed out by the learned senior counsel for the respondent Corporations, they are under the care and control of the Central Government through the General Insurance Corporation of India, the first respondent herein and the Central Government is the body competent to advise the respondent companies on such matters. In as much as the union of India have not made any provision for reservation in matters of promotion for the posts in Class-I cadre in the services of the respondent companies, the writ petitioners, at the best can redress their grievance from the union India only. This apart, the respondents have not received any directives from the administrative ministry for as providing reservation for SC/ST officers for promotions within class-I posts. The promotion of officers in Class-I is strictly done in accordance with the provisions contained in the promotion policy for officers. It also provides for Promotion Committees., viz., Lower Management Services Committee and Middle Management Services Committee in each of these committees a SC/ST representative is necessarily a member of the Committee. The Promotion ts Committees select officers for promotions and forward a list of such officers to the appointing authority for effecting promotion. Thus, the SC/ST representative in each Promotion Cornmime protects and safeguards the interests of 30 SC/ST officers in promotion.
9. Besides, the, nidelina and administrative instructions relating to the promotion policy for officers also contains a specific provision (Para VI) for SC/ST officers, which provides as follows :
'For promotion to the cadre of Deputy Manager and below, such of the SC/ST officers who are senior enough in the zone of consideration for promotion so as to be within the number of vacancies would be included in the list provided they are not considered unfit for promotion...
It is urged on behalf of the respondents that they have been strictly giving effect to this provision commonly known as the 'Protection clause'. This concession to SC/ST officers is being ex-so tended without any breach to SC/ST officers in matters of promotion within Class-I category.
10. M. M. Venkatachalapathy, learned senior counsel for the petitioners submitted that as per the Directive Principles contained in Art. 46 of the Constitution, it is the obligation on the part of the State to promote with special care the Educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled bribes, and shall protect them from social in justice and all forms of exploitation. It is further submitted that assuming that there are no eirculars providing reservation in the categories in question, then it is open to this Court to enforce the directive principles contained in Article 46 by issuing a direction to make reservation in the post in question. He also further referred to the recent decision of the Supreme Court which held that the directive principles are enforceable and therefore, this Court must interfere and issue suitable directions to protect the interests of the petitioners. As already noticed, Art. 46 of the Constitution deals with the promotion of educational and economical interests : SC and ST and other weaker sections. This Article merely declares the objective of the State, and Re other directives, does not confer any enforceable right. The Supreme Court oberved that there are millions of other citizens apart from the SCs & STs who also belong to the weaker sections and directed the Central Government to draw up a guideline for this purpose. In Indra Sawhney case 1992 Supp. (3) SCC 217 the Supreme Court has clarified that the expression 'weaker sections' of the people s wider than the expression 'backward class') of citizens, which is only a part of the weaker sections. Backward classes comprise only those, Yhich are socially or economically backward lie term weaker section does not necessarily refer to a group or a class. It connotes all sections of the society which are rendered weaker rue to various causes, viz., poverty, natural ca-amity or physical handicap. As already noticed, the respondents have not received any Directions from administrative ministry for proaiding reservation for SCIST officers for promotion within Class-I posts. We have already ioticed, there cannot be any direction to the respondent companies to comply with a policy or underline, which is not in existence and further mrore as the respondent companies have also not failed to adhere to any existing rule or guideline.
11. Mr. M. Venkatachalapathy, learned senior counsel, in support of his contention, placed strong reliance on the decision rgorted in Ashok Kumar Gupta and Another v. State of U. P. and Vidya Sagar Gupta and Others v. State of U. P. : [1997]3SCR269 which was decided by three Hon'ble Judges of the Supreme Court. Learned Senior counsel submitted that the right of promotion is a fundamental right and that promotion of social justice is a fundamental right and equally economic empowerment is a fundamental right to the disadvantaged. The above case was one where different set of officers filed the Writ Petition challenging the promotion of the Respondents 2 to 10 therein have sought a Writ of Mandamus to restrain the State of U. P. from giving effect to the promotions given to the Respondents 2 to 10 and also sought a writ of certiorari to quash the orders dated March 12, 1981 appointing the 2nd respondent as Superintending Engineer on ad hoc basis and on regular basis w.e.f . April 10, 1991 as temporary Chief Engineer by order dated November 7, 1994 and orders promoting few others as Superintending Engineers. By proceedings dated March 8, 1973, the Government had provided percentage in reservation for Dalits and Tribes at 18% and 2% respectively in all services or posts to he filled in by promotion through process of selection either by direct recruitment or by competitive examination or limited departmental examinations. The said percentage has been increased to 21 % for Dalits and retained at 2 % for the Tribes under the U.P. Services (Reservation for Schedule Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 that came into force with effect from December 11, 1993. When the Respondents 2 to 10 were a considered and recruited as promotees from the cadre of Executive Engineer to that of Superintending Engineer and above cadres on the basis of merit, the appellant., before the Supreme Court came to challenge their appointments. It was contended in the High Court and reiterated by their learned counsel that in Indra Sawhney v. Union oflndia known as Mandal case eight of 50 the nine Judges, per majority held that appointment by promotion under Articles 16(1) and 16(4) of the Constitution is unconstitutional. They placed strong reliance on the judgment of Jeevan Reddy. I., speaking for three Judges and Sawant,J., for himself in that behalf. It was also contended that having declared the promotions under Articles 16(1) and 16(4) of the Constitution as unconstitutional, overruling the judgment of a Bench of five Judges of the Supreme Court in General Manager, Southern Railway, v. Rangachari : (1970)IILLJ289SC to the same being not correct in law. It was also urged that having declared the reservation in promotion as unconstitutional, it is void ab initio under Article 13(2) of the Constitution, and that the promotion made to Respondents 2 to 10 is at all levels, therefore, is unconstitutional. The operation of the unconstitutional direction cannot be postponed by prospective overruling of Rangachari ratio.
12. The question considered in Ashok Kumar Gupta v. State of U. P. (supra) was that die direction to operate the scheme of reservation in promotion for five years is inconsistent with and in derogation of the substantive right to equality guaranteed under Articles 14 and 16(1). Therefore, the Scheme is unconstitutional and that the prospective operation of Mandal case amounts tojudicial legislation and amounts to temporary amendment to the Constitution Or an addition in the form of a proviso to Article 16(1) or 16(4) of the Constitution. It was further contended that the exercise of Art. 142 to postpone the operation of the judgment after 5 years amounts to perpetration of void action and is voidable of the appellants' fundamental rights guaranteed under Articles 14 and 16(1) of the Constitution.
13. In the above case, the reservation in promotions in all the services or posts under the State of Uttar Pradesh was in vogue from March 1973. The legislature of U.P. reiterated the need for continuance of the reservation not only in direct recruitment but also its continuance, as mentioned in the U.P. Act, which came into force w.e.f. December 11, 1993. The judgment in Mandal case was delivered on November 16, 1992. All the promotions made prior to that date were held valid in Mandal case. The, impugned judgment of the High Court was rendered on August 4, 1993 while the Constitution (77th Amendment) Act of 1995 came into force on June 17, 1995. Thepromotions of the respondents came to he made between November 17, 1992 and December 11, 1993 ie., within five years of the directions in para 860 (8) in Mandal case and agreed to by other learned Judges. Therefore, it was contended that the promotions to and appointment of the private respondents is constitutional. The Supreme Court on a consideration of the above submissions made by both the parties held that the direction in Manm Case postponing the operation of the judgment of reservation in promotions for a period of five is years is a part of the scheme of judicial review eing an innovative device to meet out justice to the Dalits and Tribes giving breathing time to the executive to bring about suitable legislative measures, if they so desired and if no action was taken by amending the law, on expiry of five years, the Judgment in Manm case would become operative. Thereafter reservation in promotion would he unconstitutional which 1 invalidity was remedied . As already held, this being one of the tools of judicial craftsmanship adopted by exercising the power under Article 142, which is available only to Supreme Court, the directions given are not violative of rights under Article 14 read with Article 16(1), nor ultra vires the power nor void, not incom patible or inconsistent with the doctrine of equality enshrined under Article 14 read with Article 16(1) of the Constitution. On the other hand, the power was exercised by the Supreme Court under Article 142 read with Article 32 and the direction postponing the operation of the decision for a period of five years is a law of the land under Article 141. In the concluding portion, the Supreme Court held that the U.P. Act saves the existing policy of reservation in promotions, and the judgment in Mandal case saves the promotions already made, and even excess promotions remained undisturbed and the law became operative only from the date of the Judgment. Therefore, the Supreme Court held that promotions of the respondents are legal and valid and they do not become void or unconstitutional as contended by the appellants and dismissed the writ petition accordingly.
14. We are of the view that the above Judgment cited by Mr. M. Venkatachalapathy, learned senior counsel for the petitioners as no application to the facts and circumstances of the case on hand and is distinguishable on facts. Because, the question which arose for our consideration in the case on hand is with reference to the promotion of the petitioners as per the reservation policy and after the introduction of Article 16(4A) on June 17, 1995 which is not for consideration in the above said judgment.
15. We have already considered the arguments of Mr. A. L. Somayaji, learned senior counsel for the respondents, with reference to the non impleading of the Central Government as party/ respondent in the writ petition and the nonexistence of any direction to the respondent companies to comply with the policy or guidelines pursuant to the 77th Amendment to the Constitution and also the other contentions. We need now only to consider two judgments cited by Mr. A. L. Somayaji, learned senior counsel in order to appreciate his legal submissions. The first is the decision reported in National Federation of SBI & Others v. Union o India & Others : (1996)ILLJ435SC . Inthatease, the precise nature and character of the concession provided to Scheduled Castes and Scheduled Tribes in the matter of promotions within Class I in the service of the public sector banks fell for consideration in the batch of writ petitions before the Supreme Court and the above judgment was rendered by three Hon'ble Judges of the Supreme Court. The writ petitions were filed by Associations of Scheduled Castes' and Scheduled Tribes' employees working in several public sector banks. The reliefs sought for in all the writ petitions are broadly identical. On December 31, 1977 'the Ministry of Finance, Department of Economic Affairs (Banking Division),. 40 Government of India, addressed a letter to all the Nationalised Banks as well as to the State Bank of India and its subsidiary banks intimating them that the Ministry has since decided to extend the scheme of reservation in promotions also. 'Re letter stated that according to the Reserve Bank of India, it will be difficult to formulate a scheme uniformly applicable to all the banks though the basic policy of reservation can always be enunciated. On May 30, 198 1, the Ministry of Finance, Department of Economic Affairs (Banking Division), Government of India issued a letter to all the Chairmen and Managing Directors of Nationalised Banks as well as to the Chairman, State Bank of India and the Managing Directors of seven subsidiary banks of State Bank of India on the subject of 'reservation for Scheduled Castes/Scheduled Tribes in promotion'. Another communication was also sent on November 7, 1983 from the io Ministry of Finance. The writ petitioners placed strong reliance on the decision reported in Bihar State Haran Kalyan Paishad v. Union of India : (1985)IILLJ173SC and submitted that the said decision clearly lays down is the rule of reservation. It is also contended on behalf of the SCIST Association that the decision taken would not be consistent with the principle underlying clauses (1) and 4 of Article 16 the Constitution of India and that the interpretation placed by him is not only reasonable but consistent with the general reservation policy of the Government of India and serves to ensure the vacancies reserved for SC/ STs to them, even though in competition with open category candidates they may lage behind. 'Me Supreme Court rejected the said argument and held that they are unable to agree with the learned counsel for the appellant. The Supreme Court held that in so far as promotions within Class-I are 30 concerned with which alone the Memorandum dated March 26, 1970 deals there are no orders of the Government of India applying the rule of reservation, and those earlier memorandums provide for reservation in Classes-II, III and IV but not for promotion to Class-I and not at any rate to promotions within Class-I. Nor does the Memorandum dated March 26, 1970 provide for such reservation. The Supreme Court further observes that while the rule of reservation jo is made applicable to the lower categories, viz., Classes-II, III and IV, no such reservation was thought advisable in the matter of promotions within Class-I. 'Re Supreme Court has categorically observed that the rule of reservation does not apply to promotions within Class-I ie., promotions to be made on the basis of selection to posts which carry an ultimate salary of Rs. 2250/- per month or less in the revised scale, but a concession in terms of para-2 of the. Memorandum dated March 26, 1970 is provided in that behalf.
16. In Bihar State Hatijan Kalyan Padshad case, the attack therein was upon two letters, one (supra) issued by the Ministry of Steel and c Mines dated April 8, 1982 addressed to the Chairman of the Steel Authority of India Limited and the other dated August 19, 1982 from the Steel Authority of India Limited to the Chief Personnel Manager, Bokaro Steel Plant respectively, It was contended that the said letters were inconsistent with and contrary to Para 9 of the Brochure. In the above case, the Supreme Court has observed thus :
'Be that as it may, what is relevant is that i neither the Presidential Directive referred to is i in Bihar State Haryan Kalyan Padshad (supra) nor the office Memorandums referred to above nor for that matter Para-9 of the Brochure provide for reservation in the matter of promotions within Class-I.We must, therefore, say with great respect that the assumption made in me judgment in Bihar State Hadjan Kalyan arishad (supra) that the rule of reservation applies to promotions with Class-I does not appear to be correct. We may also mention that para 9.1 and 9.2 as set out in the Brochure (seventh edition) do not say anything different.'
For the above reasons, the Supreme Court held that the decision in Bihar State Hatijan Kalyan Parishad (supra) cannot be said to lay down the law correctly in so far as it purports to hold that the rule of reservation applies in the matter of promotions within Class-I. The review petition preferred against the aforesaid decision was disposed of on January 21, 1987. Reliance was also placed on subsequent decision of the Supreme Court in Syndicate Bank Scheduled Castesl Schedled Tribes Employees Association v. Union of India : (1990)IILLJ354SC . Following the decision Bihar State Harijan Kalyan Parishad case (supra), it was held in this decision that in matter of promotions within Class-I (Group-A) posts, rule of reservation applies though subject to the procedure prescribed in Para-9 of the Brochure.
A review petition was moved by the respondents in the said writ petition relying particularly upon the words 'there is no reservation ' occurring in Para 9.2. (a) of the Brochure. Reliance was also placed by the respondents on a decision of the Supreme Court in All India Bank of Baroda Scheduled Castes and Scheduled Tribes Employees Association v. Union ofindia & Others W.P. No. 1594/87 decided on August 18, 1988 in which it was held that promotions by selection within Class I to be effected on the basis of selection, shall he effected in accordance with the rules contained in para 9.2 of the Brochure. The review petition was dismissed holding that the decision dated August 10, 1990 was based upon the material placed before them. It was also observed that the failure of the parties to bring a particular fact to the notice of the Court furnishes no ground for review.
17. The decision in Nation Federation of SBI & Others v. Union of India (supra) specifically over rules the decision in Bihar State Harijan Kalyan Parishad case(supra) and the Syndicate Bank Scheduled Castev Scheduled Tribes Employee Association case (supra). In the concluding portion, the Supreme Court has observed in paras 30 & 31 as follows :'
'30. We may reiterate that both according to Shri Rajinder fflachhar as well as learned counsel for the respondents, there is no specific order, rule or Memorandum applying the rule of reservation in favour of Scheduled Castes/scheduled Tribes in the matter of promotions within Class-I services. In the absence of such reservation, the forty-point roster prepared by the Govermnent of India cannot be applied or followed, for the simple reason that the roster prepared merely in irnplementation of and to carry out the rule of reservation. 'Mere can be no roster in the absence of rule of reservation. If the rule of reservation is not made applicable to a particular appointment or promotion, there can be no question of following the forty-point roster therefore. The forty-point roster itself does not provide for reservation. It merely specifies places for reserved categories in accordance with and consistent with the rule of reservation already made.
31. For the above reasons, we hold that in the matter of promotion by selection to posts within Class-1 which carry an ultimate salary of Rs. 2250/- in the revised scale of pay per month or less, there is no reservation in favour of Scheduled Castes/ Scheduled Tribes but they are entitled to the concession contained in Para 2 of the Office Memoranduin dated March 26, 1970 issued by the Ministry of Home Affairs. The concession is that those Scheduled Castes, 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 provided they are not considered unfit for promotion. (This rule has been explained in the body of the judgis ment by giving an illustration, which it is not necessary to repeat here). The position of such candidates included in the select list would, however, be the same as is assigned to them by the Departmental Promotion Committee on the basis of their record of services. The said candidates would not be entitled for the purpose of the said selection, one grading higher than the grading otherwise assignable to them on the basis of their record of service. This is also the purport of para-9 of the Brochure in so far as it deals with promotions within Class-I.'
18. Another decision cited by the learned senior counsel for the respondent Corporations reported in The Commissioner of Commercial Taxes, Andhra Pradesh v. G. Sethwnadhava Rao & Others : [1996]1SCR693 can also be usefully looked into in the present context. That case, the Supreme Court analyses as to why Art. 16(4A) was introduced in the Contitution. After referring to few judgments of the Supreme Court, in para Supreme Court has observed as follows :
'The Parliament by amending the Constitution and introducing Art. 16(4A) has removed the base as interpreted by this Court in Indra Sawhney's case(supra) that appointment does not include promotion by making express provisions that when the State forms an opinion that members of the Scheduled Castes or Scheduled Tribes are not adequately represented in any service or to any class or classes of base in the service under ill, the State, the State is empowered to make provisions for reservation by promotion. Article 16(1) does not prevent the State from making such a provision. In Indra Sawheny's case(supra) also, this Court reiterated that riot to equality under Articles 16(1) is equally applicable to the Scheduled Castes and Scheduled Tribes and Article 16(4) is not an exception. Reservation is part of the scheme of equality under Article 16(1). Article 16(4A) would establish that the interpretation put UD in Rangachari's, no and Karamchari Sangh s (supra) cases received parliamentary approval. It would thus be clear that as a principle of law, rule of reservation can apply not only to initial recruitment but also in promotions where the State is of the opinion that Scheduled Castes and Scheduled Tribes are not adequately represented in promotional posts in class or classes of service under the State. It is seen that Rule 22 of the general Rules provides reservation for appointment By direct recruitment. By Constitutional parameters and interpretation of law by this Court, reservation under Articles 141, 16(1) and 16(4) would include reservation in promotion as well.'
The appeal was accordingly allowed. The Supreme Court, in the concluding portion held that in view of the stand taken by the Tribunal that Rule 22 would apply only for direct recruitment and not for appointment by promotion, as illegal and the appeal filed by the State of Andhra Pradesh was accordingly allowed.
19. We have already referred to Article 16(4A) and the said Article deals with matters of promotion to any class or classes of posts in the service under the State. It shall not prevent the State from making any provision for reservation in matters of promotion. In implementing the provision of Art. 16(4A), the opinion of the State that the Scheduled Castes and Scheduled Tribes are not adequately represented in the services under the State is a condition precedent. As on date and as referred to in the main writ petition and not denied by the petitioners, the Central Government has not so far advised the respondent corporations by any memorandum or by any letter on such matters. 'Merefore, we are unable to accept the arguments of Mr. M. Venkatachalapathy, learned senior counsel for the petitioners, that the members of the petitioner association are entitled to be considered for promotion as per Article 16(4A) of the Constitution and that the petitioners have a fundamental right for consideration of their names for further promotion. We are unable to agree with the said contention. The Action Committee of the petitioner in their representation have only requested the first respondent corporation to implement the reservation policy in promotion within Class-I category SC/ST officers in the future promotional exeriscise as per the amendment by Article 16(4A) of the Constitution. Irrespective of the specific stand taken by them in November 1995, the petitioners have now approached this Court with some imaginary grievances.
20. As regards the maintainability of the writ petition, we are in entire agreement with the arguments of the learned senior counsel appearing for the respondents. As rightly pointed out by him, there cannot be any direction to the respondent corporations to comply with the policy or guidelines which is not in existence. Therefore, the prayer of the petitioners to issue a Writ of Mandanws or as prayed for in the amended prayer, cannot at all be considered or granted and the same deserves to be rejected. Therefore, for all the foregoing reasons, we answer on question No. 1 that no such direction can be issued to the respondent corporations to comply with the policy or guidelines which is not in existence and on question No. 2 that such a prayer of petitioners cannot at all be maintained, since no policy or guideline is in existence, there is no question of failure to adhere to the rules and the guidelines. Question Nos. 1 & 2 are thus answered accordingly. On question No. 3 we answer that the writ petition is not maintainable in law. However, in the circumstances of the case there will be no order as to costs.
21. Now coming to the Writ Appeal, the same has been preferred against an interim order passed by M. Ali Mohamed, J., dated July 16, 1996 and made in WMP No. 11626 of 1996 in W.P. No. 8166 of 1996, issuing certain directions pending disposal of the main writ petition. As contended by the learned senior counsel appearing for the respondent corporations in Writ Petition that the learned single Judge ought to have noticed that the Amendment introduced to Article 16 of the Constitution by way of 77 the Amendment does not give any right to the members of the petitioner association in the matter of promotion, unless and until the State takes the opinion that SCs/STs are not adequately represented in the services of the State and makes a provision for reservation in the matter of promotion to any class or classes of posts.Admittedly, in exercise of powers under Clause (4A) of Article 16 of the Constitution, no direction or instruction has been issued by the Government in the matter of promotions to various posts in Class-I in the respondent corporations. Therefore, the members of the writ Qtitioners association cannot claim any right see force in the contention of the learned senior counsel appearing for the appellants in the Writ Appeal. However, now that the main Writ Petition itself is disposed finally, there is no need to discuss about the verasity of the argument or correctness of the order of the learned single Judge. In view of the opinion now taken 5 by this Division Bench on the maintainability of the writ Petition and on merits, no further order is necessary in the Writ Appeal and the same is accordingly disposed of. Consequently, the interim or er passed by the learned single Judge in WMP. No. 11626/96 is vacated. In view of the disposal of the Writ Appeal CM P No. 12337 of 1996 is dismissed. No costs.
M. Karpagavinayagam, J.
22. I fully agree.