IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/12/2004
CORAM
THE HONOURABLE MR.JUSTICE V. KANAGARAJ
WRIT PETITION No.20541 of 1998
Life Insurance Corporation
of India, Schedule Castes and
Scheduled Tribes Employees
Welfare Association, rep. by
its General Secretary. ... Petitioner
-Vs-
1. Life Insurance Corporation of India,
rep. by its Chairman,
Central Office,
Yogakshema,
Mumbai-400 021.
2. The Senior Divisional Manager,
Life Insurance Corporation of India,
L.I.C. Building,
Anna Salai, Chennai-2.
3. The Executive Director (Personnel),
Central Office,
Yogakshema,
Mumbai-400 021. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorari as stated therein.
For Petitioner : Mr. K. Shanmugakani
For Respondents: Mr. M. Jagadeesan (For R-2)
No Appearance (For R-1 & R-3)
:O R D E R
The Life Insurance Corporation Scheduled Caste and Scheduled Tribes
Employees Welfare Association represented by its General Secretary has sought
to issue a writ of certiorari to call for the records in Circular
No.3850/ASP/98 Dept. Personnel/ER/A dated 22.6.1998 on the file of the third
respondent herein and quash the same. By the said Circular, the relaxation
given to the Scheduled Caste and Scheduled Tribe employees in the minimum
qualifying service for promotion to the cadre of Higher Grade Assistants as
three years has been withdrawn. The further grievance of the petitioner
association is that the respondents have not considered the candidates
belonging to Scheduled Castes and Scheduled Tribes who have put in three years
of service and hence the writ petition.
2. The pleadings of the petitioner association is that the
petitioner is a registered Association established for the welfare and
protection of the interests of Scheduled Castes and Scheduled Tribes employed
in the Life Insurance Corporation of India. The Life Insurance Corporation,
being a statutory corporation established under the Life Insurance Corporation
of India Act, 1956 and being a part of ‘State’ as defined under Article 12 of
the Constitution of India, is under a Constitutional obligation to provide for
reservation for the Scheduled Caste and Scheduled Tribe employees both at the
recruitment level as well as by way of promotion. It is submitted that from
the post of Assistants/Typists, there is a next cadre, viz. Higher Grade
Assistant and the qualification prescribed for the post of Higher Grade
Assistant/Typist is provided in the Instructions for implementation of the
Life Insurance Corporation of India Class-III and Class-IV Employees Promotion
Rules, 1987 as follows :
Higher Grade Section Heads (a) Section Heads
Assistants Stenographers or
Assistants and (b) 5 years service
all other in the scale of
employees in the Assistants and a
scale of Section pass in the
Heads or Assistants Departmental
test or on
acquiring the
prescribed
qualifications
or
(c) 10 years service
in the scale of
Assistants.
Higher Grade Stenographers 5 years service
Assistants as Stenographers
(Stenographers)
It is provided in the Rules that for the purpose of promotion, what is
required is five years service in the scale of Assistants and a pass in the
Departmental test or acquiring prescribed technical qualification or ten years
service in the scale of Assistants or Section Heads and the selection
procedure prescribed is written examination followed by oral interview; that
Assistants/Typists who have passed the departmental test in the past will not
be required to pass the departmental test again for promotion to the said
cadre and that means, once an Assistant has passed the departmental test for
the post of Higher Grade Assistant, he is eligible to be included in the panel
for the post of Higher Grade Assistants; that as per Class-IV of the
instructions for promotion to Higher Grade Assistants, the preparation of the
panel is to be done as provided below:
“6.(i) there shall be prepared a panel of all eligible employees in
the order of total marks obtained on the basis of criteria of selection
specified in Rule No.5.
(ii) out of the panel prepared in accordance with sub-rule (1), all
the candidates in the order of merit equal to 5 times the number of vacancies
may be called for interview by the Promotion Committee.”
Under Rule 5 of the Promotion Rules, the conditions of eligibility and
criteria for selection is provided as follows :
“(i) The categories of employees eligible for promotion to various
cadres, their conditions of eligibility for promotion and criteria for their
selection shall be as specified in the Schedule.
(ii) Notwithstanding anything contained in sub-rule (i), the
Chairman may direct that an employee who has excelled in any field of sports
or athletics at the national or international level or has received any
national or international award in any cultural, literary or scientific
activity, may be promoted to the next higher cadres.”
3. It is further submitted that every year, the respondent
Corporation prepares the panels for promotion to Higher Grade Assistants from
the post of Assistants/Typists; that the candidates who have passed the
departmental test are eligible to be included for the panel for promotion to
be selected by the Promotion Committee on interview; that in the year 1998,
the Corporation issued a notification on 9.12.1998 notifying promotion of 40
candidates to the Chennai Division-I and Zonal Office, Chennai including Zonal
Training Centre, Chennai and Internal Audit Department, South Zone, Chennai;
that as per the said notification, the panel of candidates to be interviewed
before the Promotion Committee was prepared and call letters for the said
interview were issued on 15.12.1998, but for reasons best known to them, the
Corporation did not include the names of such of those Scheduled Caste and
Scheduled Tribe employees who had passed the departmental tests earlier in the
said panel.
4. It is further submitted that in the year 1990, the first
respondent had issued an order relaxing the minimum qualifying service in
respect of the Scheduled Caste and Scheduled Tribe employees for promotion to
the cadre of Higher Grade Assistants from five years to three years; that
however, since the said relaxation was arbitrarily done without any
jurisdiction, it was withdrawn by the second respondent by his order dated
22.6.1998; that based on the order dated 22.6.1998, the respondents had
rejected the claims of those Scheduled Caste and Scheduled Tribe employees who
have qualified with the three years qualifications and having passed the
departmental test and did not call for interview such of those Scheduled Caste
and Scheduled Tribe employees who have the three years service and have also
passed the departmental tests; that the Circular dated 22.6.1998 is challenged
in this writ petition.
5. It is also contended on behalf of the petitioner Association
that the impugned order was passed by the Executive Director of the
Corporation, whereas under Rule 8 of the Rules, only the Chairman has the
jurisdiction and the authority to withdraw the relaxation granted by him and
as such, the impugned order is without jurisdiction.
6. In the counter affidavit, the respondents would submit that the
respondents have followed the instructions contained in the office Memo.
dated 22.2.1997; that even though it is permissible to prescribe reasonably
qualifying marks or valuation for SCs/STs consistent with the efficiency of
the administration and the nature of duties attached to the office concerned
in the matter of direct recruitment and the same is not permissible in the
matter of promotion; that with regard tot he relaxation of service, the
Chairman has the power (with certain restrictions) by a special instruction to
relax the rule in the case of employees belonging to the SC/ST employees; that
as far as personnel and administrative matters are concerned, the Executive
Director is also empowered on behalf of the Chairman to issue instructions;
that the petitioners contention that 22 SC/ST candidates who have passed the
departmental test in 1997 have not been selected for promotion is only as a
result of the withdrawal of the concessions as per the impugned circular dated
22.6.1998 and not for any other reason. On such averments, the respondents
would seek to dismiss the above writ petition.
7. During arguments, the learned counsel appearing on behalf of the
petitioner association would cite item No.1 (v) of the impugned order relating
to relaxation in the minimum qualifying service for promotion to the cadres of
HGA (Admn.) and AAO wherein it is stipulated:
“Instructions issued by the Chairman from time to time in exercise of the
powers vested in him under Rule (8) of the Promotion Rules 87.”
The learned counsel would also cite paragraph 4 of the impugned order dated
22.6.1998:
“According to the Govt. O.M.No.36012/23/96-Estt(Res.) Dated 22.2.1997 (Copy
enclosed) conveying the above decision of the Govt. henceforth there shall be
no separate standards of evaluation for candidates of SC/ST for promotion and
assessment of all candidates for this purpose will be with reference to
uniform standard. Any instruction which provides for lower qualifying
marks/lesser standard of evaluation in the matter of promotion for candidates
belonging to SC/ST may therefore have to be treated as having been modified to
this extent.”
In paragraph 5 of the impugned order, it is further averred as follows;
“In view of the Govt. orders, the Chairman has reviewed the position
and has decided that all instruction issued by us which provide for lower
qualifying marks/less standard of evaluation in the matter of promotion of
candidates belonging to SC/ST mentioned in (1) above will stand withdrawn with
immediate effect.”
8. Citing the above relevant paragraphs from the impugned order
passed by the Executrive Director (Personnel) dated 22.6.1998,the learned
counsel would submit that the question involved is fixation of lower
qualifying marks and lesser standard of evaluation for candidates of SC/ST for
promotion and assessment of all the candidates for this purpose with reference
to uniform standard.
9. The learned counsel would point out that this notification has
taken away clause (ii) and (iv) in paragraph 1. The learned counsel would
also point out that this circular has been issued in violation of Article 16
(4)(A) of the proviso to Article 335 of the Constitution of India and
allegedly following the judgment of the Honourable Supreme Court reported in
1996 (8) Judgment Today (Supreme Court) page 643 (S.Vinod kumar and another
Vs. Union of India and others 643). In the said judgment, the Honourable
Apex Court, while clarifying its earlier judgment in INDIRA SAWHNEY ETC. V.
UNION OF INDIA AND OTHERS reported in 1992(6) SC 273 = 1992 Suppl.(3) SCC 215
has held:
“… so far as the provision for lower qualifying marks or lesser
level of evaluation in the matter of promotion is concerned, it is not
permissible under Article 16(4) in view of the command contained in Article
335 of the Constitution. In other words, even if it is assumed for the sake
of argument that reservation is permitted by Article 1 6(4) in the matter of
promotions, a provision for lower qualifying marks or lesser level of
evaluation is not permissible in the matter of promotions, by virtue of
Article 335. If so, there can be no question of such a provision or
“concession”, as it is called by the Tribunal, being saved by the declaration
in Para 829 of the said judgment.”
10. The learned counsel continuing his argument would submit that
subsequently the Parliament enacted Article 335 by 82nd amendment dated
8.9.2000 and would cite the memorandum dated 3.10.2000 and would conclude his
argument saying that the respondents are bound to act in accordance with the
memorandum.
11. On the contrary, on the part of the learned counsel appearing for
the respondents would cite paragraph 13 of the impugned order and would say
that the reservation in promotion in favour of SC/ST candidates will continue.
The learned counsel would further point out that the amendment to Article 335
comes into operation only on 8.9.2000 whereas the interview commenced on
15.12.1998 and citing para 14 of the writ petition, the learned counsel would
say that it is in violation of the proviso to Article 335 of the Constitution.
The learned counsel would end up his argument after the 82nd amendment to the
Constitution having gone under water and would pray to dismiss the above writ
petition.
12. In consideration of the facts pleaded having regard to the
materials placed on record and upon hearing the learned counsel for both it
could be assessed that the petitioner association seeking to quash the
circular dated 22.6.1998 issued by the Executrive Director ( Personnel)
thereby offering instructions or making provisions to the Life Insurance
Corporation of India Clause III and Clause IV Employees Promotion Rules, 1987
thereby providing to the lower qualifying marks lesser standard of evaluation
in favour of SC/ST candidates. According to the petitioner Association, the
executive order is contrary to the statutory rules framed under the L.I.C. of
India Act, 1956 and the Life Insurance Corporation of India, Clause III and
Clause IV Employees Promotion Rules. It is the further contention of the
petitioner Association that the said order is without jurisdiction and the
same is contrary to the spirit of reservation policy and is designed in
defeating the very constitutional obligation. The petitioner Association
would further point out that the subject was considered by the High Court of
Rajasthan which refused to strike down the relaxation made available under
Section 8 of the said Promotion Rules. It would be further argued that the
relaxation of the memorandum of qualifying service for the Scheduled
Caste/Scheduled Tribe employees for promotion, the post of higher grade
assistant is a constitutional right and it cannot be withdrawn by the
respondents much less without an opportunity for the members of the
petitioners association held and therefore the impugned order is also contrary
to the principles of natural justice. The further contention of the
petitioner Association is that while it is the Chairman under Rule 8 of the
Rules, who could exercise jurisdiction and authority to withdraw the
relaxation granted by himself and as such the impugned order passed by the
Executive Director (Personnel) of the Life Insurance Corporation of India is
without jurisdiction and at this score also, the impugned order is liable to
be quashed.
13. On a perusal of the materials placed on record, it comes to be
known that subsequent to the filing of this writ petition, the Government has
brought in 82nd Amendment to the Constitution of India thereby incorporating a
proviso to Article 335 which reads as follows:
“Provided that nothing in this Article shall prevent in making of any
provision in favour of the members of the scheduled Castes and Scheduled
Tribes for relaxation in qualifying marks in any examination or lowering the
standards of evaluation, for reservation in matters of promotion to any class
or classes of services or posts in connection with the affairs of the Union of
a State.”
14. In pursuance of the said enabling proviso of Article 335 of the
Constitution, the Government has issued O.M.No.36012/23/96-Estt. ( Res.)
Vol.II, dated 3.10.2000, thereby restoring, with immediate effects, the
relaxations/concessions in matters of promotion for candidates belonging to
Scs/STs by way of lower qualifying marks, lesser standards of evaluation that
existed prior to 22.7.1997. In other words, the effect of these instructions
would be that the Department of Personnel and Training’s
O.M.No.36012/23/96-Estt. (Res), dated 22nd July, 19 97 became inoperative
from the date of issue of the said O.M. Since the impugned order dated
22.6.1998 was issued by the respondents following the orders of the Government
of India in O.M.No.36012/23/96Estt (Res.) dated 22.2.1997 which has become
inoperative now, pursuant to the 82nd Amendment of the Constitution of India,
nothing survives in the above writ petition and the same becomes liable only
to be dismissed as infructuous.
In result, the above writ petition is dismissed as infructous.
No costs.
Index: Yes
Internet: Yes
gs/ks/Rao
To
1. The Chairman,
Life Insurance Corporation of India,
Central Office,
Yogakshema,
Mumbai-400 021.
2. The Senior Divisional Manager,
Life Insurance Corporation of India,
L.I.C. Building,
Anna Salai, Chennai-2.
3. The Executive Director (Personnel),
Central Office,
Yogakshema,
Mumbai-400 021.